Employment review: July 2015 – Alcohol and drugs in the workplace
Mr McElroy was employed as a healthcare assistant by Cambridgeshire Community Services NHS Trust (the Trust) from 1 July 2003 until he was summarily dismissed for gross misconduct on 22 January 2014.
A colleague told Mr McElroy’s line manager, that Mr McElroy smelt of alcohol. She interviewed him and took the same view. Mr McElroy suggested that he had drunk a couple of beers the night before. The Trust decided that Mr McElroy should be suspended pending an investigation under the Trust’s disciplinary policy. The circumstances were also referred to the Trust’s Occupational Health department (OH).
The Trust’s disciplinary policy gave being unfit for duty through the effect of alcohol as an example of gross misconduct. It also referred to the substance misuse policy which did not ban drinking alcohol shortly before coming to work but recommended that employees avoid doing so. It provided that an employee refuting a medical diagnosis or refusing medical help would not be grounds for disciplinary action although unacceptable behaviour or standards of work would be dealt with under the disciplinary policy.
The investigation report noted a number of previous occasions when managers had expressed concern at smelling alcohol on Mr McElroy but found that no one had any concerns about his behaviour or that he had been acting drunk. Patients seemed to consistently like him and there had been no other negative reports about him.
Mr McElroy was informed that there would be a disciplinary hearing to consider an allegation of attending work under the influence of alcohol which had led to a breakdown in trust and confidence in his ability to carry out his duties.
Ms Dance then received an OH report which had been based on information provided by Mr McElroy about his alcohol intake. The report suggested that he was fit to return to work, that any future concerns should be dealt with under the substance misuse policy and involve re-referring Mr McElroy to OH. By then, Ms Dance had become aware that Mr McElroy had been admitted to hospital in respect of oesophagitis which she knew could be associated with excess alcohol consumption. She took the view that the circumstances were unclear and therefore sent specific questions to OH and asked Mr McElroy to attend a further appointment but he refused to do so. OH advised that without Mr McElroy’s consent they would be unable to release information.
Following a re-arranged disciplinary hearing, Mr McElroy was dismissed. While the dismissal letter referred to the original disciplinary charge, it also noted that Mr McElroy had failed to follow a reasonable management instruction to attend a further meeting with OH. The letter referred to accounts from colleagues which led to the conclusion that Mr McElroy had attended work under the influence of alcohol and had put himself, colleagues and patients at risk. It also referred to the inconsistent explanations he had provided.
Mr McElroy appealed against the decision which was unsuccessful. He subsequently submitted an employment tribunal claim and the Judge held that Mr McElroy had been unfairly dismissed.
In light of the evidence, the employment judge concluded that a reasonable employer would not, given the absence of evidence that he had been incapable of functioning effectively at work, have concluded that Mr McElroy was unfit for duty as defined by the Trust’s policies. A reasonable employer would not, without evidence of some accompanying impairment of performance, treat smelling of alcohol as amounting to gross misconduct or conduct justifying dismissal.
The reasons for dismissal included the findings on alcohol and those on failure to follow the instruction to attend OH. The failure to attend OH was not a complaint put to Mr McElroy at the time when the disciplinary process was initiated or before the disciplinary hearing. A reasonable employer would not see it as fair to find a charge proved when it had never been identified to the employee, particularly where it was a serious charge thought by the employer to amount potentially, at least in part, to gross misconduct. Further, where a dismissal letter indicated that a request to meet OH again was intended to be a supportive or remedial step as the Trust’s had done, a reasonable employer would have taken into account the fact that the substance misuse policy provided that refusal to participate in such a step would not, of itself, be a ground for disciplinary action.
This case illustrates the need for employers to ensure that they follow their procedures and keeps the disciplinary process under review. When considering the issue of alcohol and its effects, in particular, employers should ensure that the relevant policy is adhered to. As the employment judge noted, it is not the case that an employer cannot take action against an employee who comes to work smelling of alcohol and who refuses to participate in an OH referral. A warning could have been given that the refusal was unacceptable and that a further refusal would lead to action under the employer’s disciplinary procedure. Where a disciplinary issue is upheld the sanction needs to be appropriate. In this case, while being unfit for duty through the effect of drink was given as an example of gross misconduct, the facts did not support a finding that the employee had been unfit for duty. Similarly, refusal to attend an OH appointment, when offered as a supportive measure (as the tribunal found it had been) was not a disciplinary issue.
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