Many employers will assume that there may be grounds for dismissal when an employee attends work smelling of alcohol. However, in the recent case of McElory v Cambridgeshire Community Services NHS Trust, an Employment Tribunal has held that the dismissal of an employee without notice after attending work smelling of alcohol was unfair.

The employee, Mr McElory was employed by the NHS Cambridge Community Services as a health care assistant.

In August 2013, a colleague informed Mr McElory’s line manager that Mr McElroy smelt of alcohol. His line manager then interviewed him and had the same view. Mr McElroy was suspended pending an investigation and the matters were referred to the Trust’s occupational health department.

The Trust’s disciplinary policy stated that being unfit for work because of alcohol consumption was an example of gross misconduct. It referred to the Trust’s Substance Misuse Policy which interpreted this to mean that the employee was unable to function effectively at work. The Substance Misuse Policy did not ban drinking alcohol shortly before coming to work but recommended that employees avoid doing this. It also stated that an employee disagreeing with a medical diagnosis or refusing medical help would not be grounds for disciplinary action but unacceptable standards of work would be dealt with under the disciplinary policy.

Mr McElory denied coming to work under the influence of alcohol and explained that the smell staff had detected was his aftershave. The investigation found that a number of other members of staff had smelt alcohol on Mr McElory on previous occasions but that no one had any concerns regarding his behaviour or that he had been acting drunk.

The Trust received an occupational health report stating that Mr McElory was fit for work and that any further concerns should be dealt with under the Trust’s Substance Misuse Policy. Mr McElory’s line manager then became aware that he had been admitted to hospital with oesophagitis which she was aware could be connected to excessive alcohol consumption. His line manager then sent specific questions to Occupational Health and asked Mr McElory to attend a further occupational health assessment but he refused to attend. Following a re-scheduled disciplinary hearing Mr McElory was dismissed.

Mr McElory appealed the dismissal but was unsuccessful so issued a claim of unfair dismissal in the Employment Tribunal.

The Tribunal found that a reasonable employer would not have found Mr McElroy was unfit for work as there was no evidence to show that he had been incapable of carrying out his duties. The reasons for the dismissal included the Trust’s findings concerning the alcohol and the employee’s failure to attend the second occupational health appointment. The failure to attend the occupational health appointment was not an allegation put to the employee before the disciplinary hearing. The Tribunal found that a reasonable employer would not see it as fair to find an allegation proved when it had never been identified to the employee, particularly where it was a serious allegation that may amount to gross misconduct. Further, where a dismissal letter indicated that a request to meet occupational health again was intended to be a supportive, the reasonable employer would have taken into account the fact that the Substance Misuse Policy provided that refusal to participate in such a step would not, in itself, be a reason for disciplinary action.

This case demonstrates the need for employers to ensure that they follow their internal policies and procedures. If you require any advice on a disciplinary process regarding an employee or advice on other exit strategies, please contact our specialist Employment Law & HR team on 0845 050 1958, or complete an online enquiry form.