Coronavirus: Employer’s resource centre — live guidance available here

Dismissing for being drunk at work: a moment of clarity

Employment Law & HR
BG Purple

The employment tribunal's decision in the recent case of McElroy v Cambridgeshire community services NHS trust carries with it a health warning for employers to apply their substance misuse policies with caution. 

Mr McElroy, a healthcare assistant, showed up for work smelling of alcohol. Concerned that he posed a risk to service users, his employer suspended him pending an investigation under the trust's disciplinary policy and he was referred to the Trust's occupational health department. A disciplinary hearing was scheduled to consider the charge that he had 'reported at work under the influence of alcohol'.  

When the Employer received the OH report they found it unsatisfactory. It had been based on information supplied entirely by Mr McElroy which left out some significant details. It made no reference to Mr McElroy's previous admission to hospital with a condition commonly related to alcohol misuse and Mr McElroy had given inconsistent explanations for the smell. When the employer asked Mr McElroy to return to OH for an assessment to explore these issues he refused to attend. The hearing was rescheduled and Mr McElroy was dismissed for gross misconduct, not only for the alcohol smell but also, according to his dismissal letter, for refusing to attend the second OH assessment.  

The employment tribunal ruled that his dismissal was unfair. While it was reasonable for the employer to believe he had been drinking alcohol prior to his shift, this, in itself, was not a breach of the policy the employer was seeking to rely upon. The Trust's substance misuse policy defined unfitness to work due to the effect of drink as being incapable of functioning effectively at work. There had been no evidence to show that this was the case and therefore there had been no breach.  

Moreover, the Tribunal ruled that the additional grounds for dismissing the employee, namely his refusal to obey the reasonable management instruction to attend the second OH assessment, was unfair because the employee had been given no prior warning that this could be potential grounds for dismissal. 

This case illustrates the need for employers to ensure that they follow their procedure and keep their disciplinary process and policies under review. In particular, when applying any particular policy as the basis for gross misconduct an employer must be clear about what constitutes a breach of that policy.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division