Sinclair v Wandsworth Council (Employment Appeal Tribunal)

In January 2006 Mr Sinclair was caught drinking on duty. Although this was a breach of the Council’s disciplinary code, disciplinary proceedings were to be put on hold subject to Mr Sinclair agreeing to an occupational health referral.

Mr Sinclair was, at first, reluctant to take up the referral but upon being told that to keep his job he must do so he agreed, saying he would “do what it takes” to keep his job.

Before the referral was made a disciplinary meeting was held and Mr Sinclair received a final written warning. Four weeks later Mr Sinclair was again found to be drunk at work and was suspended. An occupational health appointment was then arranged but Mr Sinclair failed to attend. Mr Sinclair was subsequently dismissed.

The Employment Tribunal found that the dismissal was unfair for two main reasons. First, because the Council had neither provided Mr Sinclair with a copy of its alcohol policy until the day before the disciplinary hearing, nor had his supervisors received a copy. Secondly, the Council had not made it clear exactly what Mr Sinclair needed to do, by way of seeking treatment, to avoid disciplinary proceedings. Mr Sinclair was therefore under the impression that what he had been doing was all that was expected of him.

Mr Sinclair was only awarded four week’s pay in compensation. The Employment Tribunal took the view that even if he had started treatment Mr Sinclair would not have done so seriously enough to avoid disciplinary proceedings later and, therefore, would have been dismissed four weeks later. The award was also reduced by 25% to reflect Mr Sinclair’s own contribution to his dismissal.

The Council appealed the finding of unfair dismissal and the limit of 25% on contribution. Mr Sinclair appealed the four week limit and the imposition of the 25% contribution on his award.

The Employment Appeal Tribunal (“EAT”) upheld the finding of unfair dismissal. Although the Council had tried to rectify the acknowledged problems identified at the disciplinary stage through the internal appeal (though this was not until September 2006), it was not considered to have done enough. The EAT also upheld the decision to limit compensation to four weeks pay and the basis for it.

With regard to the 25% contribution, the EAT upheld the appeal of the Council. They found that the Employment Tribunal was wrong to regard alcoholism as an illness and the resulting alcohol related incidents as non-contributory. Mr Sinclair had breached the disciplinary code twice and lied about the circumstances of the second breach. The case was remitted to the Employment Tribunal to decide upon any further contributory fault reduction.

In trying to give employees the chance to keep their jobs by pursing treatment, the Council had created doubt about what disciplinary action could be taken and when. A more robust policy would not have been subject to the same risk of internal communication failures.

This case underlines that no matter what policy an employer introduces it must inform employees of it and make sure that it is clear, properly communicated and enforced.