The Employment Tribunal has held that it was unfair for an employer to summarily dismiss an employee for reporting to work under the influence of alcohol where the evidence only supported a finding that he smelt of alcohol. Further, it was not reasonable to dismiss, in part, on the grounds of a second matter that had not been formally notified to the employee as a disciplinary charge (McElroy v Cambridge Community Services NHS Trust).

Background

Where an employer has a potentially fair reason for dismissal, the question of the overall fairness of the dismissal will turn on whether the employer acted reasonably in treating that reason as a sufficient reason for dismissal.  In misconduct dismissals, the dismissal will only be fair if at the time of the dismissal the employer: (i) believed the employee to be guilty of the misconduct; (ii) had reasonable grounds for holding that belief; and (iii) had conducted as much investigation as was reasonable in the circumstances.

In this case, the Employment Tribunal had to decide whether an employer had acted fairly in dismissing an employee who had reported to work smelling of alcohol and who had later refused to follow an instruction to attend an occupational health appointment.

Facts

The Claimant was a healthcare assistance employed by an NHS Trust.  He was employed for over ten years before being dismissed for gross misconduct.

The Claimant had reported for work smelling of alcohol.  The employer's Disciplinary Policy provided that "being unfit for work through the effects of alcohol" would be considered as gross misconduct.  This was further defined in the associated Substance Misuse Policy as: "being incapable of functioning effectively at work".  The Claimant's line manager, B, interviewed the Claimant and he indicated that this was due to the fact that he had drunk a moderate amount of beer the evening before.   The employer's own policies did not restrict employees from drinking alcohol prior to attending work, although it recommended that this be avoided.  Despite this explanation, B decided to refer the matter her own line manager, D.  D decided that the Claimant should be suspended pending a disciplinary investigation.  D also made a referral to the employer's occupational health department.

The disciplinary investigation revealed that there had been previous concerns from managers that the Claimant had reported for work smelling of alcohol.  However, importantly, there were no recorded concerns regarding his performance or behaviour at work.  Nor had any formal disciplinary action ever been instigated regarding these incidents.  It was discovered that informal, oral "advice" had once been offered to the Claimant about not turning up to work smelling of alcohol.  The investigation also revealed that patients appeared to like the Claimant and no complaints or negative reports had been received from patients. Nonetheless, D decided that there would be a disciplinary hearing.  The original disciplinary charge was that the Claimant had reported to work under the influence of alcohol which had led to a breakdown in trust and confidence in his ability to carry out his role as a healthcare assistant.

At around the same time, the occupational health adviser provided a report suggesting that the Claimant was fit to return to work and any future concerns should trigger a further referral.  However, D became aware that, whilst suspended, the Claimant had been admitted to hospital with oesophagitis (a condition associated with excess alcohol consumption).  She was concerned that he had not submitted a sick note in respect of this absence and that he had been unclear about when he would be well enough to return to work.  She was also concerned that the occupational health adviser may not have been made aware of the hospital admission. 

D asked the Claimant to attend a further occupational health appointment to try to get to the bottom of these issues.  However, the Claimant refused to attend.  The employer's Substance Misuse Policy provided that refusing medical help would not be grounds for disciplinary action but unacceptable behaviour or standards of work would be.  It also provided that a continued refusal of treatment could mean that the disciplinary policy would be applied.

The Claimant was ultimately dismissed on the grounds of reporting to work under influence of alcohol but also for refusing to follow a reasonable management instruction i.e. to attend a second occupational health appointment. 

Decision

The Employment Tribunal (ET) decided that the Claimant had been unfairly dismissed. 

The alcohol charge

Although it was reasonable for the employer to have found that the Claimant had attended work smelling of alcohol, it was not reasonable,  in the absence of evidence, to find that he had been "unfit for duty".  Further, it was not reasonable to conclude that smelling of alcohol alone constituted gross misconduct or conduct justifying dismissal.  Indeed, the employer had dealt with previous incidents of smelling of alcohol by way of informal advice (or at best, an informal warning).  In any event, the employer's own policy placed the emphasis on the impairment of performance at work as the basis for disciplinary action.

The failure to follow a reasonable instruction charge

The ET concluded that it was reasonable to have sought a second occupational health report in the circumstances.  However, the second charge had not been formally put to the Claimant as part of the original disciplinary process.  The employer attempted to argue that it would have dismissed on the alcohol charge alone but the ET said it was clear that the second charge "fed into" the decision to dismiss.

The ET held that it was not reasonable to find a charge as proven without having identified it to the employee, particularly where it was a serious charge which could amount (in part) to a finding of gross misconduct.  Although the second charge had been discussed in the course of the disciplinary hearing, this was not sufficient: the employee must be formally notified that a particular matter was being considered as a disciplinary charge. 

In any event, the second occupational health appointment was said to be a remedial step.  As such, the employer should have been mindful of the wording of their Substance Misuse Policy which provided that a refusal of medical help would not necessarily be grounds for disciplinary action.  Therefore, it was not reasonable to treat the Claimant's refusal to attend as a failure to follow a management instruction. 

The disciplinary process should have focussed on the circumstances which prompted the referral to occupational health (i.e. the alcohol charge) rather than the refusal to participate in the process.  If an employer perceives that an employee is failing to follow a reasonable instruction, and that failure could be considered as gross misconduct, then a reasonable employer must take explicit steps to inform the employee of the risks of non compliance.  This did not happen here.

Comment

Although this is only a first instance decision, it serves as a useful reminder of some key principles for employers to bear in mind when dealing with misconduct issues:

  • Ensure that when formulating disciplinary charges and considering sanctions that you are mindful of the wording of your own policies.  Here, the employer appeared to gloss over the fact that the employee had not been "unfit for duty" - the standard of misconduct specified in its own Disciplinary Policy.
  • The disciplinary process should be kept under review.  Where a new charge arises then this must be formally notified to the employee, to allow them the opportunity to respond and make representations.  It is not sufficient to raise a new matter during the course of a hearing: the employee needs to understand the charges against him and the consequences that might flow from those charges being upheld.
  • Explicitly warn employees of the risks of not complying with instructions i.e. where it could lead to a further disciplinary charge.
  • When deciding on the disciplinary sanction, be clear about what the employee has done wrong.  It is important to consider the evidence of misconduct against the precise wording of the offences set out in your policies.  Here, the available evidence did not support a sanction of summary dismissal but may have supported a lesser sanction e.g. a warning, with further offences triggering a more serious sanction.
  • It is also worth noting that the ET criticised the employer's disciplinary outcome letter, noting that it weaved between findings on the two disciplinary charges and it was not fully clear which of the findings related to which charge.  They also criticised the fact that the letter failed to make it clear who had made the findings and the dismissal decision.  Although this didn't affect fairness, it added to the general confusion within the letter and was a matter that the ET said the employer should address in future.  This reminds us of the need to take care in the drafting of disciplinary letters.