This is only a first-instance decision (not binding), but it highlights the importance of following a proper and fair procedure even where it would seem that an incident might warrant immediate dismissal.  

In the case of McElroy v Cambridgeshire Community Services NHS Trust, the Claimant, Mr McElroy, was a healthcare assistant employed by the Trust, involved in the care of patients, some of whom would be vulnerable. A colleague reported to Mr McElroy’s line manager that he had come to work smelling of alcohol. The line manager interviewed Mr McElroy and arrived at the same conclusion, which she then reported to her superior. Mr McElroy explained that he had drunk a couple of beers the night before, but the Trust suspended him pending an investigation. His case was also referred to Occupational Health (“OH”) for evaluation.

During the investigation, it transpired that there had been a number of previous occasions where others reported Mr McElroy smelling of alcohol, but he had denied coming to work drunk and suggested people might have smelt his aftershave, garlic and hospital gel. The investigation concluded that nobody had any concerns about Mr McElroy’s behaviour or performance or that he has been acting as if drunk. Patients seemed to consistently like him and there had been no other negative reports about him. The OH report suggested that Mr McElroy was fit to return to work.  

Nevertheless, the Trust decided to dismiss him in relation to the disciplinary charge and additionally because Mr McElroy failed to attend a further meeting with OH after he had been admitted to hospital for an illness which could have been related to alcohol consumption.  

Mr McElroy brought an unfair dismissal claim in the Employment Tribunal.  

The Tribunal held that his dismissal was unfair on the basis that a reasonable employer would not have treated this as gross misconduct without evidence of an adverse effect on the employee’s ability to do his job, or a previous warning under the employer’s disciplinary policy. The Trust’s disciplinary policy gave being unfit for duty through effect of drink as an example of gross misconduct, but substance misuse policy defined this to mean incapable of functioning effectively at work, and there were no findings to this effect in Mr McElroy’s case.  Further, the complaint that Mr McElroy failed to attend a second OH appointment was not put to him at the time when the disciplinary process was initiated and therefore could not form part of his dismissal especially in circumstances where it was originally intended to be a supportive measure and the substance misuse policy provided that such refusal would not in itself be a ground for disciplinary action.  

Employers should have disciplinary and substance misuse policies tailored to their particular circumstances and ensure that these policies are applied consistently. Once the disciplinary proceedings have started they ought to be kept under review (for example, if a further allegation has to be added, the employee should be notified). Employers should also ensure that the sanction is proportionate to the conduct in question.