In the recent case of McElroy v Cambridge Community Services NHS Trust, an Employment Tribunal held that an NHS Trust unfairly dismissed an employee who came to work smelling of alcohol, as they did not have evidence that he was actually unfit for work.
Mr McElroy was employed as a healthcare assistant by Cambridgeshire Community Services NHS Trust (the Trust). He came into work smelling of alcohol and the Trust suspended him pending an investigation under the Trust's disciplinary policy. The circumstances were also referred to the Trust's Occupational Health department (OH).
The Trust's disciplinary policy included being ‘unfit for duty through the effect of drink’ as an example of gross misconduct. The substance misuse policy defined this as the employee being ‘incapable of functioning effectively at work’. It also provided that an employee refusing medical help would not be grounds for disciplinary action.
The investigation report noted a number of previous occasions when managers had expressed concern at smelling alcohol on Mr McElroy but no one had expressed any concern about his behaviour, or suggested that he had been acting drunk. The Trust decided to proceed to a disciplinary hearing.
In the meantime, the Trust received the OH report and sent further questions to OH, asking that Mr McElroy attend a further appointment. He refused to do so.
The disciplinary hearing took place and Mr McElroy was dismissed. While the dismissal letter referred to the original disciplinary charge of attending work whilst under the influence of alcohol, it also noted that Mr McElroy had failed to follow a reasonable management instruction to attend a further meeting with OH.
Mr McElroy appealed against the decision. His appeal was rejected and he issued an unfair dismissal claim.
The employment judge held that Mr McElroy had been unfairly dismissed. A reasonable employer would not, without any evidence that he had been incapable of functioning effectively at work, have concluded that Mr McElroy was unfit for duty as defined by the Trust's policies. A reasonable employer would not have concluded that smelling of alcohol amounted to gross misconduct without further evidence of impairment in performance or a previous disciplinary warning on this topic.
The failure to attend OH was not a complaint put to Mr McElroy at the time when the disciplinary process was initiated or before the disciplinary hearing and so it was unfair to find a charge proved when it had never been identified to the employee.
Finally, the Tribunal said that the request to meet OH again was intended to be a supportive step, and the Trust should have taken into account the fact that the substance misuse policy stated that refusal to participate in such a step would not, of itself, be a ground for disciplinary action.
This case emphasises that employers should always ensure that any dismissal is in line with their policies. The facts in this case simply did not fit the definition of gross misconduct in the employer’s policies.
It also demonstrates that disciplinary procedures should be kept under review, so if a further issue arises during the proceedings, this is dealt with appropriately. If the new issue needs to be dealt with as a disciplinary issue, this should be made clear to the employee.
An employer can still take action against an employee who comes to work smelling of alcohol and who refuses to participate in an OH referral. For example, a warning could be given that the refusal was unacceptable and that a further refusal would lead to action under the employer's disciplinary procedure.