Someone at work smelling of Alcohol?

How would you deal with someone smelling of alcohol in the workplace?

You may be a manager, director or owner of a business and you have been informed by a colleague that another employee at work is suspected and believed to smell of alcohol. Would you deal with this differently if that person’s role was either driving may be an HGV or operating heavy and dangerous machinery?

The scenario could be that one morning the employee turns up for work as usual, following a great night out, a birthday celebration, wedding or just a heavy drinking session with friends and it is blatantly obvious that they have been drinking because you can smell it a mile away. Or it could be that someone has a secret drinking problem and has not been able to hide as well as normal.

How would you handle this situation and does smelling of alcohol justify dismissal?

The answers are; you must handle it with caution as you would expect in this type of situation and no not really.

It may seem obvious that this matter certainly shouldn’t be ignored but there are a couple of issues that would need to be taken into account initially. Firstly, how can an employer attempt to deal with an alcohol-related allegation which may not even be true? You would also expect the suspected individual to deny any wrong-doing and, indeed, that individual may have good grounds for complaining that the allegations as being mischievous and malicious.

There are two main legal issues to this scenario, the legal duty as an employer to the individual and the Health and Safety legal duty.

The starting point for this situation has to be looking at or having a well-drafted alcohol policy, explaining the expectation of all the members of staff and explaining to managers on how to handle the situation, which could include guidelines for possible alcohol testing.

In the case of McElroy v Cambridge Community Services NHS Trust(1), an employment tribunal held that an NHS trust unfairly dismissed an employee who was reported for coming to work smelling of alcohol, without further evidence that he was unfit for work.

The background of the case

Mr McElroy worked as a healthcare assistant and it was a colleague that reported that he smelt of alcohol. He was then suspended(2) from work pending a disciplinary investigation(2) and he was also referred to Occupational Health. The investigation discovered that there had been previous occasions when concerns had been expressed that he smelt of alcohol but no one had any concerns about his behaviour or that he was acting drunk. 

The employer decided that there was a disciplinary case to answer that he reported working under the influence of alcohol, which had led to a breakdown in trust and confidence in his ability to carry out his role. 

The Occupational Health report indicated that Mr McElroy was fit to return to work. It suggested that any similar concerns in future should be dealt with under the substance misuse policy. 

At the disciplinary hearing, the manager considered that a further referral to OH was required. Mr McElroy had given inconsistent accounts as to the possible causes of the smell of alcohol (aftershave, garlic and hospital alcohol gel) and as to when he would be well enough to return to work.

The hearing manager was also aware that Mr McElroy had recently been admitted to hospital with Oesophagitis, which she knew could be associated with excess alcohol consumption.

The disciplinary hearing was adjourned. An Occupational Health appointment was fixed but Mr McElroy did not attend. The manager sought to arrange another appointment but Mr McElroy said he was not prepared to attend another appointment. The manager sought further information from OH about the recent hospital admission but it was not prepared to release any information unless Mr McElroy agreed. 

At the rearranged disciplinary hearing Mr McElroy was dismissed for gross misconduct. The dismissal letter referred to attending work under the influence of alcohol. It also referred to his failure to follow a reasonable management instruction to attend an OH appointment. Mr McElroy appealed unsuccessfully and claimed unfair dismissal.

The employment tribunal agreed that his dismissal was unfair.

Under the Trust’s disciplinary policy, being unfit for duty through the effect of drink was given as an example of gross misconduct. However, it was not reasonable to conclude that Mr McElory was unfit for duty without evidence that he had been incapable of functioning effectively at work. A reasonable employer would not treat smelling of alcohol as gross misconduct without some accompanying adverse effect on performance. 

The Employment Tribunal(3) also thought it was not reasonable for the employer to rely on Mr McElroy’s failure to attend the OH appointment as this charge was never put to him. In addition, the substance misuse policy provided that refusing medical help would not of itself be grounds for disciplinary action.

A stated above there is also the Health and Safety duty placed on employers and part of this duty is to take action where there are grounds to suspect an employee of being under the influence of alcohol (or drugs), particularly where the work involved may pose a safety risk.

The Health and Safety Executive(4) provide some great guide including the ‘Don’t mix it Guide’(5) which provides advice on dealing with alcohol-related problems at work including drinking outside working hours.

This is a stark warning to employers which could cause a problem if not addressed: 

'If you knowingly allow an employee under the influence of excess alcohol to continue working and this places the employee or others at risk, you could be prosecuted’. 

The Health and Safety Executive guide suggests a four-step process for dealing with alcohol problems in the workplace:

• Step One ‘Find out if there is a problem’ – Start by looking at all the information available such as productivity. Accident reports disciplinary problems and sickness absence.
• Step Two ‘Decide what to do’ – there is some guidance on deciding what to do to tackle alcohol issues including looking at whether it is acceptable for staff to consume alcohol during working hours and how to deal with an employee who turns up to work drunk.
• Step Three ‘Taking action’ this is the consideration of whether current or future staff know the company's rules about drinking and whether anyone needs more information or training.
• Step Four ‘Checking what you have done’ – you should regularly monitor and review the policy and process that is in place for tackling alcohol at work.

Employers really need to be careful when framing disciplinary charges and also ensure that the facts found during the investigation process support the decision to dismiss.

The interesting thing about this case is that the dismissal could have been fair had the policies been drafted appropriately and had persons taking the disciplinary and appeal decisions been properly trained.

In dealing with disciplinary action:

• Make sure that your policies are robust, consistent and appropriate for your business;
• Make sure your policies are adhered to;
• Take appropriate steps in each potential disciplinary incident;
• Apply the disciplinary sanctions consistently;
• Where a disciplinary issue is upheld, make sure that the sanction is also appropriate.

One final point to consider is that the individual could have had a drinking problem because of stress and depression, which could be classed as a disability. The employer would then have to think about reasonable adjustment because the danger of a claim for discrimination arising from a disability.

So in summary, dismissal should be a last resort when dealing with alcohol-related problems in the workplace and all reasonable steps should be taken in advance to help and support that employee in line with your duty of care.

References

1.           indg240.pdf [Internet]. [cited 2017 Nov 3]. Available from: https://www.hse.gov.uk/pubns/indg240.pdf

2.           Disciplinary Investigations [Internet]. Castle Associates Ltd. 2016 [cited 2017 Nov 3]. Available from: https://castleassociates.org.uk/support-centre/disciplinary-investigations

3.           Make a claim to an employment tribunal - GOV.UK [Internet]. [cited 2017 Nov 3]. Available from: https://www.gov.uk/employment-tribunals

4.           HSE: Information about health and safety at work [Internet]. [cited 2017 Nov 3]. Available from: https://www.hse.gov.uk/

5.           Don’t mix it: A guide for employers on alcohol at work [Internet]. [cited 2017 Nov 3]. Available from: https://www.hse.gov.uk/pubns/indg240.htm