Title: Drunkeness at Work
Date: 10 February 2008

What can you do if a member of staff arrives at work apparently drunk?  How should you handle an isolated incident and what course of action is open to you if you believe an employee has a persistent alcohol problem?

There is a difference in how drunkenness at work should be handled depending on whether it is an isolated incident or a symptom of alcoholism and depending on the nature of the work being done. An isolated incident can generally be treated as a serious misconduct issue and an individual may have a written warning put on his or her personnel file. A second incident could then result in dismissal.

Dismissal for a first incident is only usually justifiable where drunkenness could have severe consequences, for example if the individual is an airline pilot or operating a complex piece of machinery.

More difficult is how to deal with drunkenness at work when the individual has (or claims to have) an alcohol problem. Alcoholism itself is not a fair reason for dismissal (and is specifically excluded from the definition of disability for the purposes of the Disability Discrimination Act) but drunkenness at work is. The issue was looked at in a recent Employment Appeal Tribunal (EAT) case.

Mr Sinclair was dismissed from his job with Wandsworth Council for twice turning up for work drunk. He brought an unfair dismissal claim in the tribunal and was held to have been unfairly dismissed as the Council had not given him a copy of its alcohol policy and had not set out clearly what steps he would need to take in order to avoid dismissal.

His claim was successful because the Council had not followed correct procedures. However his compensation was limited to four weeks’ loss of earnings as this was thought to be the length of time it would have taken to dismiss him had the correct procedure been followed. In addition, his compensation was reduced by 25% for contributory fault.

Mr Sinclair then appealed against the four week limit to his loss of earnings and the Council also appealed against the finding of unfair dismissal and the decision to limit the contributory fault reduction to 25%.

Requirements for a fair dismissal

In order for a dismissal to be fair, an employer must:

  • have a fair reason for dismissal (conduct, capability, redundancy, illegality, retirement or some other substantial reason)
  • have acted reasonably
  • follow any applicable dismissal and disciplinary procedure.


Fair reason - Mr Sinclair was dismissed on the second occasion of being found drunk at work, following an initial warning, when he falsely claimed that the alcohol had remained in his system from the night before (when in fact he had been drinking earlier that day).

Acting reasonably - Was dismissal a reasonable response to the misconduct? The tribunal took the view that the employer was within his rights to dismiss the employee following two incidents of drunkenness at work.

Procedure - Did the employer correctly follow a statutory or internal dismissal procedure?

The Council had an alcohol policy which required employees in this situation to follow a course of treatment in order to prevent them losing their job. Mr Sinclair was not given a copy of the policy and was arguably in some doubt as to whether he was doing all that was required of him. The Council was found to have dismissed Mr Sinclair unfairly on procedural grounds and the EAT upheld this finding.

Compensation - The EAT held that the tribunal had been entitled to limit compensation to four weeks’ loss of earnings. It also upheld the Council’s appeal that the reduction in compensation should not be limited to 25% and remitted the case to the tribunal to decide the amount of any further contributory fault reduction.

Employers should take some comfort from the Wandsworth Council case that a fair dismissal could be achieved following incidents of drunkenness at work, provided the correct procedure is followed, even if the employee has an underlying alcohol problem. Even if the dismissal is technically unfair, this case demonstrates that an individual’s compensation might be reduced to nil – resulting in something of a Pyrrhic victory for the ex-employee.

We can advise on all aspects of employment law, including the issue of drunkenness at work.

Disclaimer

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published.

Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.


 

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