Veale Wasborough Vizards
22 JUN 2015
Unfair dismissal of employee who came to work smelling of alcohol
Solicitor, Veale Wasbrough Vizards
The Employment Tribunal (ET) has found that an NHS trust's (the Trust) dismissal of a healthcare assistant after he attended work smelling of alcohol and subsequently refused to attend a follow-up Occupational Health (OH) appointment was unfair.
In McElroy v Cambridgeshire Community Services NHS Trust Mr McElroy had been employed by the Trust for ten years as a healthcare assistant. In August 2013, a colleague of Mr McElroy reported to his line manager that Mr McElroy smelt of alcohol at work. Following the matter being escalated further, Mr McElroy was suspended pending investigation under the Trust's disciplinary policy.
The Trust's disciplinary policy listed being 'unfit for duty' through the effect of drink as gross misconduct. The Trust's substance misuse policy did not ban the consumption of alcohol prior to coming to work, rather it recommended against it. It also stated that an employee refusing medical help would not be the basis for disciplinary action but that unacceptable behaviour or standards of work would be dealt with under the disciplinary policy.
The investigation found that managers had previously reported that Mr McElroy had smelt of alcohol whilst at work. However the report found that there was no evidence or prior complaints regarding Mr McElroy's conduct at work or ability to perform his duties and Mr McElroy had not received a prior warning in respect of this.
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Mr McElroy had been admitted to hospital while he was suspended for oesophagitis. Given this could be associated with excessive drinking, the Trust requested a follow-up appointment with OH. Mr McElroy refused to attend the OH appointment. Following a re-arranged disciplinary hearing, Mr McElroy was dismissed. When making the decision to dismiss the Trust took in to account Mr McElroy's refusal to attend the OH appointment even though Mr McElroy had not been told this was being considered before the hearing. Mr McElroy brought a claim to the ET for unfair dismissal.
The ET found that the decision to dismiss Mr McElroy was unfair. A reasonable employer would not (when using the Trust's policies) have treated an employee coming to work smelling of alcohol as gross misconduct in the absence of any other evidence that the employee was incapable of doing his job or without any previous warning not to do so. A reasonable employer would also not have taken into account a charge (the refusal to attend the OH appointment in this case) that had not been put the employee when deciding to dismiss.
As this is an ET decision it is not binding on future decisions however it is a useful illustration that employers should ensure that they follow their own procedures and keep the disciplinary procedure under review. In this case Mr McElroy's refusal to attend an OH appointment arose during the disciplinary process. If, despite the wording in the substance misuse policy, the Trust decided that the refusal should be dealt with as a disciplinary issue Mr McElroy should have been made aware of this.
Employers should also ensure that other policies including any substance misuse policy are in line with the disciplinary procedure so that the appropriate procedure is clear in circumstances where an issue arises which is potentially a disciplinary issue or an issue that should be dealt with under a different policy such as the substance misuse policy in this case.