Employers seeking to dismiss for misconduct should consider carefully whether the behaviour properly falls within the category of gross misconduct and ensure they apply the precise terms of their policies and procedures. In McElroy v Cambridgeshire Community Services the dismissal of an employee for attending work while smelling of alcohol was unfair where the policy required an employee to be “unfit for duty” and there had been no evidence or finding to that effect. The dismissal was also unfair in relying on the employee’s refusal to attend a second occupational health appointment, given that it had not been made clear that this would be treated as a disciplinary matter and the employer had not put this allegation to the employee.

Employers wishing to consider dismissal for attendance at work while smelling of alcohol should include this expressly as potential gross misconduct in their disciplinary policies.