A recent UK case has set a pioneering precedent which confirmed that a summary dismissal of a healthcare assistant for attending work smelling of alcohol was unfair. The judgment should encourage businesses to consider whether their existing policies and procedures are sufficient, particularly with disciplinary and dismissal issues.
Once an employer has shown a potentially fair reason for dismissal, whether a dismissal is fair is determined by whether the employer acted reasonably in dismissing the employee in the circumstances. In misconduct dismissals, the employer must show a genuine belief that the employee is guilty of misconduct and this belief must be based on reasonable grounds following a comprehensive investigation of the facts.
In McElroy –v- Cambridgeshire Community Services NHS Trust (January 2015), the judge held that a reasonable employer would not have treated arriving at work smelling of alcohol as gross misconduct in the absence of evidence suggesting an adverse effect on the employee’s ability to do his job, or the absence of a previous warning given under the employer’s disciplinary policy. Moreover, the Trust’s substance misuse policy did not create an absolute ban on consuming alcohol shortly before coming to work.
The judge took into account the fact that the Trust should have been more vigilant in maintaining proper standards and commented that it could not have concluded that its employee was unfit for duty based on the definition of misconduct in their policies. The judge held that the employee had been unfairly dismissed.
What does it mean?
This case illustrates the need for an employer in this type of situation to ensure that it follows its procedures and keeps the disciplinary process under review. In particular, employers should ensure that they have policies in place and that such policies are properly adhered to. Employers must address what action should be taken when conduct falls below the requisite standard and take the correct disciplinary steps. Once disciplinary proceedings have started they need to be kept under review and, where a disciplinary issue is upheld, the sanction needs to be appropriate. Indeed in this case, an official warning may have been the correct course of action.
The ET held that a reasonable employer should not have assumed that an employee smelling of alcohol was automatically unfit for work. Under the employer’s disciplinary procedures, turning up to work smelling of alcohol did not constitute gross misconduct.
An employer must be vigilant in following its procedures when dealing with issues in the workplace.
If you would like to discuss your existing policies and procedures and how they could be revised please contact Emma Gross at firstname.lastname@example.org or on 01494 478619