Employers are often unsure about what to do if they know or suspect employees’ work is affected by alcohol or drugs, especially in organisations which do not have sophisticated policies or facilities for testing. In a recent Employment Tribunal case (McElroy v Cambridgeshire Community Services NHS Trust) an employer was found to have unfairly dismissed a healthcare assistant who had come to work smelling of alcohol. We look at the case and what lessons can be learned.
The issue began when a colleague told Mr McElroy’s line manager that Mr McElroy smelled of alcohol. The line manager took the same view and spoke to Mr McElroy who said he had had a couple of beers the night before. The matter was escalated to the next level of management and a decision was taken to suspend Mr McElroy and also refer him to Occupational Health.
Under the Trust’s disciplinary policy being unfit for duty through the effect of alcohol was an example of gross misconduct. There was no ban on drinking alcohol shortly before attending work although the policy recommended employees should not do this. The substance policy emphasised assistance and support, but stated that continued misuse or refusal of treatment could lead to disciplinary action.
An investigatory meeting took place and Mr McElroy denied coming to work drunk. He suggested that the smell may actually have been his aftershave. It transpired that there had been other occasions where colleagues had felt that Mr McElroy smelled of drink, but there had never been any concerns about his behaviour or his ability to help patients.
The result of the Occupational Health referral was that the report suggested Mr McElroy was fit to return to work and any future concerns should be dealt with under the substance policy. The employer also subsequently became aware that Mr McElroy had previously attended hospital in respect of oesophagitis, which could be linked to excess alcohol consumption.
The employer attempted to make a further referral to Occupational Health but Mr McElroy refused to participate.
The disciplinary hearing was then held and Mr McElroy was dismissed for gross misconduct. This was on the basis that he had attended work under the influence of alcohol and as such, had put himself, colleagues and patients at risk, and also on the basis that he had refused the second referral to Occupational Health. He appealed against the decision but his appeal was unsuccessful. He therefore brought an unfair dismissal claim.
At the Employment Tribunal, the judge found that Mr McElroy’s dismissal was unfair. In the judge’s view, a reasonable employer would not have treated attending for work smelling of alcohol as grounds for dismissal when there was no evidence of an adverse effect on the employee’s ability to do his job, and when he had not been given any previous warnings about the matter. It was also not reasonable for the employer to take account of Mr McElroy’s failure to attend a second Occupational Health appointment when he had not been told that it would be a disciplinary matter if he failed to do so.
In terms of lessons to be learned from this case, it is of course a good idea to have clear policies and guidelines in place, but also, regardless of what policies and procedures may say about grounds for dismissal, it is always important to consider whether dismissal is reasonable in the particular circumstances. Managers should be trained on how to deal with alcohol and drug issues to ensure a fair and consistent approach.
Employers have a legal duty to take reasonable care of the health safety and welfare of their employees. Clearly as part of this duty, if an employee is suspected of being under the influence of alcohol or drugs (whether prescription or illegal drugs) then an employer may be expected to take action to protect the employee and/or others. The nature of that action may depend on the employee’s role – for example drivers or those who operate heavy machinery will require a more rigorous approach as compared with sedentary office based workers. This should be considered as part of risk assessing the role.
In some workplaces, drug and alcohol testing may be appropriate. This will always require employee consent, but policies can state that disciplinary action can result if an employee unreasonably refuses consent. Any information gained through testing amounts to sensitive personal data and should be handled carefully. The Information Commissioner’s website contains useful guidance as to when employers can justify testing.
Ultimately alcohol and drug problems can be grounds for dismissal, but they should be dealt with in accordance with a reasonable procedure.
We can help with preparing or reviewing policies and procedures and also with advising on tricky issues. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).