Liberty Living plc v Reid EAT 0039/10

Mr Reid was a maintenance caretaker at one of Liberty’s managed student accommodation properties.  He had been employed since January 2006.  Liberty’s disciplinary policy stated that being under the influence of alcohol during working hours was an act of gross misconduct which could lead to summary dismissal.  Liberty also had an alcohol and drugs policy which stated that consumption of alcohol or being under the influence of alcohol while performing company business or in the workplace was prohibited and could lead to disciplinary action up to and including dismissal even for a first offence.   

In December 2008 Mr Reid left his workplace and went to a nearby bar where he had a pint of lager shandy.  He was found in the bar by Liberty’s general manager who subsequently handed him a letter summoning him to a disciplinary hearing for being under the influence of alcohol during working hours.  The disciplinary policy was enclosed with the letter but not the alcohol and drugs policy.  At the end of the disciplinary hearing on 8 December he was told that he was being summarily dismissed for gross misconduct, the reason being his consumption of alcohol during the working day.  A letter of 10 December to him then indicated that he was being dismissed both for consuming an alcoholic drink during the working day and being under the influence of alcohol during working hours.  He appealed against his dismissal contending that he had only drunk a pint of lager shandy and was not under the influence of alcohol.  When the appeal hearing upheld the decision to dismiss him because he had consumed alcohol during working hours, he brought a claim for unfair dismissal.  The tribunal upheld his claim.   

The alcohol and drugs policy was only drawn to his attention after he had been dismissed and the policy was confusing.  The tribunal took account of the fact that he had made clear in his appeal letter that he thought summary dismissal only applied where an employee was under the influence of alcohol.  None of the questioning at the disciplinary hearing had sought to establish that his words or conduct when he was found in the bar showed him to be under the influence.  The majority concluded that Liberty was not clear as to what its own policies, were there being references to both being under the influence of alcohol and consumption of alcohol.  As Liberty had failed to communicate its policies clearly to Mr Reid the dismissal was not within the range of reasonable responses and was therefore unfair.   

Liberty appealed to the EAT who agreed with the tribunal that the policies were confusing.  Drinking an alcoholic drink during working hours outside the workplace when not carrying out employment duties was not prohibited.  The EAT concluded that Liberty had not correctly applied its own policies and indeed they did not seem to know what its own policies were.   

Key point:  The case highlights the importance for employers of ensuring that their policies are made known to employees and are consistent.  If there is no consistency any termination may be unfair.