Employee smelling of alcohol was unfairly dismissed

An Employee who arrived for work smelling of alcohol was unfairly dismissed.

An employment judge has held that the summary dismissal of a healthcare assistant for coming to work smelling of alcohol was unfair. The judge held that a reasonable employer would not have treated attending for work smelling of alcohol as gross misconduct or conduct justifying dismissal in the absence of either evidence of an adverse effect on the employee’s ability to do his job, or in the absence of a previous warning given under the employer’s disciplinary policy not to do so.

When deciding to dismiss, the employer had taken account of the employee’s refusal, after disciplinary proceedings had been started, to attend an appointment with its occupational health service. The employee had not been told that this was being considered as a disciplinary issue before the disciplinary hearing. The employment judge held that a reasonable employer would not have taken account of a charge that had not been put to the employee when deciding to dismiss. Further, in light of the employer’s policies, a reasonable employer would not have treated the refusal as an act of gross misconduct, misconduct justifying dismissal or a contributory factor to such a conclusion. (McElroy v Cambridgeshire Community Services NHS Trust ET/3400622/14.)

Under section 98(4) of the Employment Rights Act 1996, once an employer has shown a potentially fair reason for dismissal, the question of whether a dismissal is fair or unfair is determined by the tribunal having regard to both:

  • Whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.
  • Equity and the substantial merits of the case.

In misconduct dismissals, it has been held that a dismissal will only be fair if, at the time of dismissal:

  • The employer believed the employee to be guilty of misconduct.
  • It had reasonable grounds for believing that the employee was guilty of that misconduct.
  • At the time that it formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.

The need for robust policies and procedures is crucial for employers as is the need to follow them.

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