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Badly drafted alcohol policy leads to unfair dismissal

BY Donald MacKinnon
Employment Law & HR
BG Purple

Many employers will have faced employees attending work the worse for wear due to alcohol or other substances.  In many cases, the employer may be looking to terminate employment.

The recent case of Liberty Living plc v Reid however is a salutary reminder to employers that dismissal does not automatically follow when an employee attends work having consumed alcohol.

In this case, the employee was a caretaker with 3 years’ service working in student accommodation. He left his workplace and was found by a manager drinking a pint of lager shandy at a nearby hostelry.  The employers relied on a term in their disciplinary policy that stated that being under the influence of alcohol during working hours could be viewed as gross misconduct, and dismissed the employee.

The employment tribunal and the EAT both found that this dismissal was unfair.  While the disciplinary policy contained the above statement, confusingly the alcohol policy did not – the policies were contradictory.  Further, there was some dubiety over which of the policies had actually been brought to the attention of the employee and precisely what ‘under the influence of alcohol’ meant in practice.

This case does not of course prevent employers dismissing employees who drink at work or attend work unfit due to overconsumption of alcohol.  What it does highlight however is that employers must make it clear to employees what the rules are in relation to such behaviour and what are the consequences of any breach of those rules.  If an employee will lose his or her job if any alcohol is consumed while at work (including lunch breaks) then this should be clearly set out and the policy drawn to the specific attention of employees.  If necessary, employees should sign to confirm receipt of the policy.

Tribunals will take a realistic view of matters.  If there are witnesses confirming that the employee smelled strongly of alcohol, was slurring his or her words and challenging for a fight, employers are going to have little difficulty in concluding that the employee was unfit for work through drink.  If however the mere consumption of alcohol, say at lunchtime, or attending work still suffering the after effects of the night before might result in dismissal, the employer will have to choose their words carefully to make this clear. 

Employers, particularly those working in safety critical areas, would be well advised to check carefully the wording of their disciplinary and alcohol policies and if any guidance or assistance is required to speak to their legal manager at Law At Work.

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