07 October 2011 #Employment
In a case which highlights the importance of having clear, unambiguous and well publicised policies, and then abiding by them, the EAT had held that an employee who consumed alcohol during working hours was unfairly dismissed.
The Claimant had left his workplace during working hours and attended a health club, where he consumed an alcoholic drink. He was found by his manager and that same day invited to a disciplinary hearing for “being under the influence of alcohol during working hours” which was listed in the Respondent’s disciplinary policy as potential gross misconduct warranting summary dismissal.
The Respondent also had a Drugs and Alcohol policy which stated “consumption of alcohol or being under the influence of alcohol ... while performing Company business or in the workplace is prohibited” and that it may “result in disciplinary action up to and including discharge even for a first offence”.
The invitation to the disciplinary hearing contained a copy of the Respondent’s disciplinary policy, but not the Drug and Alcohol Policy. The Tribunal accepted the Claimant’s assertion that he was not aware of the Drug and Alcohol Policy until after he had been dismissed.
At the disciplinary hearing, the Claimant admitted that he had left his workplace following a situation with some of his colleagues and that he know this was not acceptable. He accepted that he had drunk a pint of larger shandy but denied that this had left him under the influence of alcohol. He accepted that he was aware he should not drink whilst on duty. At the end of the hearing the Claimant was dismissed for having “consumed alcohol during working hours” and “being under the influence of alcohol during working hours [which] was considered as gross misconduct and [was] therefore judged to be sufficiently serious as to warrant summary dismissal”.
The Claimant appealed but this was not upheld. He therefore brought a claim of unfair dismissal.
The majority of the Tribunal held that the Claimant had been unfairly dismissed. The Employment Judge dissented, finding dismissal to be fair.
The employer appealed and the EAT dismissed the appeal, agreeing with the majority of the Tribunal.
It accepted the Claimant’s assertion that he was not aware of the Drug and Alcohol Policy until after he had been dismissed. Further, even if he had been aware this would not have made any difference as the policy did not actually prohibit his conduct of having a drink outside of the workplace during working hours. It did prohibit the consumption of alcohol “while performing Company business or in the workplace”, but the Claimant had not breached this provision. As such, his dismissal was unfair.
Employers who are seeking to rely on provisions contained in policies to dismiss employees should therefore ensure that: