Question
One of our employees has come to work smelling of alcohol. Can we dismiss him?
Answer
Do you have an alcohol policy in place or does your disciplinary policy deal with such matters? If so, you should firstly look at what behaviour the policy details which would be classed as misconduct. If not, it would be worth considering introducing an alcohol or substance misuse policy. If your alcohol policy or disciplinary policy states that attending work smelling of alcohol is misconduct then you will need to follow the usual investigation process, consider whether to suspend the employee pending investigation and determine whether disciplinary action is appropriate in the circumstances. If so, you should follow your disciplinary procedure and assess what sanction would be appropriate i.e. written warning or dismissal. All employees found to be under the influence of alcohol or attending work smelling of alcohol should be treated fairly and consistently.
If the policy only details that attending work under the influence of alcohol can be considered misconduct then you will need to investigate whether or not the employee who attended work smelling of alcohol was unable or unfit to do his job. If there is no evidence to prove that the employee was unfit to do his job then it would not be reasonable to dismiss the employee in the circumstances.
It was recently determined in McElroy v Cambridge Community Services NHS Trust that the NHS Trust unfairly dismissed an employee who was reported for coming to work smelling of alcohol. The NHS Trust’s disciplinary policy only mentioned being unfit for work as a result of drinking as constituting gross misconduct; it did not deal with attending work smelling of alcohol. There was no evidence to show that Mr McElroy was unfit for work and there had been no concerns expressed about his behaviour or any suggestion that he may have been drunk. The employment tribunal held that a reasonable employer would not have concluded that he was unfit for work and that smelling of alcohol was not by itself sufficient to constitute gross misconduct justifying dismissal under the trust’s disciplinary procedure and substance misuse policy.
It is important to have comprehensive policies in place which reflect the employer’s position on alcohol or substance misuse in the workplace. If the policies don’t reflect the employer’s position, whether that be attending work under the influence of alcohol or just smelling of alcohol, then the employer may find it difficult to take appropriate action against their employees or be seen to have dismissed them fairly by an employment tribunal. Employers need to investigate matters fully, ensure they have sufficient evidence and that they have the right within their company policies to take the appropriate action. Employers should also ensure that their policies are in line with their position on such matters and detail fully the standards and behaviour expected of their employees.