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Alcohol in the Work Place and Unfair Dismissal

Is it unfair to dismiss an employee who arrives for work smelling of alcohol?

Not necessarily confirmed the Employment Tribunal in the case of McElroy v Cambridgeshire Community Services NHS Trust. 

Mr McElroy was employed by the NHS Trust as a Health Care Assistant.   He was reported to his superiors for coming to work smelling of alcohol.  He was suspended pending an investigation and referred to the NHS Trust’s Occupational Health department. During the investigation, it came to light that Mr McElroy had been reported on previous occasions for arriving at work smelling of alcohol but no one had expressed concerns about his behaviour or that he appeared drunk.   Mr McElroy denied coming to work under the influence of alcohol and suggested that his aftershave was the cause of the smell.   The Occupational Health report confirmed that he was fit to return to work but the NHS Trust concluded that Mr McElroy had attended work under the influence of alcohol, putting himself, colleagues and patients at risk.  He was consequently dismissed for gross misconduct.  

However, in reviewing the NHS Trust’s decision to dismiss Mr McElroy, the Tribunal Judge highlighted that the NHS Trust’s disciplinary procedure stated that “being unfit for work due to the effect of alcohol” was an example of gross misconduct, but it did not prohibit drinking alcohol before work, instead it only recommended that employees avoid doing so.   The Tribunal judge therefore concluded that in the absence of evidence that Mr McElroy was impaired in some way by his actions, the NHS Trust had not acted reasonably in concluding that Mr McElroy was incapable of functioning effectively at work and therefore his behaviour did not amount to gross misconduct in terms of the NHS Trust’s disciplinary policy.  Accordingly, the Tribunal Judge concluded that Mr McElroy’s dismissal was unfair. 

This case therefore highlights to employers the importance of having a clear alcohol consumption policy which sets out what is and is not acceptable behaviour in the workplace.

For more information please contact Martin Sinclair or Nicola Gray or call  01224 632464.

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