A Tribunal has recently held that an NHS trust unfairly dismissed an employee who was reported for coming to work smelling of alcohol, without further evidence that he was unfit for work.
The Tribunal held that a reasonable employer would not have treated attending 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.
The healthcare assistant was investigated following a report that he had come to work smelling of alcohol. He maintained that he had only had a few drinks the night before. A number of previous incidents were not addressed by the trust and, prior to a disciplinary hearing, the trust failed to inform the claimant that his refusal to attend occupational health was being considered as a disciplinary issue.
The Tribunal highlighted that there was no evidence of impairment to function. No one had expressed any concern about his behaviour or suggested that he had been acting drunk. The Tribunal also found that it was unreasonable for the claimant’s refusal to participate in an occupational health referral to be added to the reasons for dismissal when it was not specifically addressed early on in the disciplinary process. The Tribunal also found that a reasonable employer would have taken into account the fact that its substance misuse policy provided that refusal to participate in such a medical examination would not, of itself, be a ground for disciplinary action.
This case highlights the importance of following company procedure and to review your disciplinary policy regularly. It also highlights the importance of ensuring that facts of a situation must fit a finding of gross misconduct, which it does not here. If the appropriate warnings had been given and a solid disciplinary procedure followed, the finding may have been very different. The Tribunal stated that an employer can, of course, take action against an employee who comes to work smelling of alcohol and who refuses to participate in an occupational health referral, however, they emphasised that a proper procedure must be followed.
These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.