News

28/07/2015 Employee smelling of alcohol unfairly dismissed 

Imagine this scenario - an employee comes into work smelling of alcohol.  You suspend the employee believing he is under the influence of alcohol at work and following a disciplinary meeting dismiss him. Surely this would be a fair dismissal, or would it?

Many employers will assume that there would be grounds for dismissal when an employee attends work smelling of alcohol. However, in the recent case of McElory v Cambridgeshire Community Services NHS Trust, the Employment Tribunal held that the dismissal of an employee without notice after attending work smelling of alcohol was unfair.

Being drunk or under the influence of alcohol at work is usually in the disciplinary procedures as a potential gross misconduct.

However, what appears to be a large failure in the aforementioned case, and where Employers often fall down in these situations, is gaining actual evidence of an offence. It appears that no one breathalysed Mr McElroy, which would have been critical evidence, and clearly resolved the issue over whether he was drunk at work, under the influence, or neither. There was also no evidence that his speech was slurred, he was falling over or failing to walk in a straight line, or that there was any adverse effect on his performance. 

Employers should ensure their policies are tailored to reflect acceptable standards in the workplace. Employers may also wish to consider introducing an alcohol and drugs testing policy including the right for the company to carry out an alcohol test where there are grounds to suspect an employee of being under the influence of alcohol. It is useful for companies to purchase some breathalysers, and there are many different types available to buy on the internet.  

The Employment Tribunal highlighted the fact that whilst this was a dismissal for gross misconduct, there was no evidence of impairment to Mr McElroy's functions or the carrying out of his job properly. The Tribunal held that smelling of alcohol at work was not, by itself, sufficient to amount to dismissal for gross misconduct. In short, someone's word that an employee ‘smelled of alcohol' simply is not going to cut it in an Employment Tribunal. Without gaining physical evidence, it is going to prove difficult for an Employer to demonstrate a genuine belief of the alleged misconduct.

Whilst this is an Employment Tribunal judgment and therefore not binding on other Tribunals, it should serve as a reminder of the need to ensure that you follow the correct procedures when dealing with disciplinary matters and that you keep your disciplinary policies and procedures under regular review.