A colleague reported that the employee was smelling of alcohol and once interviewed, his line manager took the same view. The employee was suspended pending further investigation.

The employer’s disciplinary policy stated that being unfit for work due to the effects of alcohol would be rendered gross misconduct.

Whilst, the managers had (in the past) expressed concerns about the employee smelling of alcohol, the investigation report concluded that nobody has had any concerns about his behaviour or that he has been acting drunk….there have been no other negative reports about him.

The employee was nonetheless summarily dismissed for gross misconduct.

The Employment Tribunal concluded that he had been unfairly dismissed. The Employment Judge found that as there was no evidence demonstrating that he was incapable of functioning effectively at work, no reasonable employer would have concluded that he was unfit for duty as defined in the employer’s Disciplinary Policy. He suggested that no reasonable employer would (without evidence of some accompanying impairment of performance), rely on smelling of alcohol as amounting to gross misconduct or conduct justifying summary dismissal.

Whilst this is a first instance decision and therefore the judgment is not binding on other cases before the Tribunal, it illustrates the need for an employer to ensure that the disciplinary sanction is appropriate. In this case, a warning could have been given and whilst being unfit for duty through the effect of alcohol was given as an example of misconduct, there was no evidence to suggest that he had been unfit for duty.

If a warning had been given and the employee had continued to turn up for work smelling of alcohol, it is likely that this decision would have been different.