Posted: Tuesday 5 April 2011
A man dismissed for drinking alcohol during working hours has had his claim for unfair dismissal upheld by the Employment Appeals Tribunal.
The caretaker had drunk a pint of lager shandy, outside his employer's property but during working hours. He was found in the bar by his manager. His employer had in place an alcohol and drugs policy, in terms of which ‘consumption of alcohol or being under the influence of alcohol’ was outlawed and was capable of resulting in disciplinary action.
At the time of his discovery the caretaker was informed by letter that a disciplinary hearing was to take place. A copy of the disciplinary policy was enclosed with the letter and made clear that ‘being under the influence of alcohol... during working hours’ amounted to gross misconduct for which an employee may be dismissed. The caretaker was dismissed at the disciplinary meeting for consuming an alcoholic drink during working hours and for being under the influence of alcohol during working hours. He then appealed on the basis that having drunk only a pint of lager shandy, he was not actually under the influence of alcohol. The internal appeal hearing upheld the dismissal and the caretaker found himself out of a job.
The caretaker brought a claim for unfair dismissal and the majority of the Employment Tribunal found in his favour as he had only been made aware of the drugs and alcohol policy after his employment had ended and in any case the policy itself wasn't a very clear one. As the policy had not been made clear to him, his dismissal was unfair. His employer appealed to the EAT who upheld the Tribunal's decision. The alcohol and drugs policy did not state that drinking outside of work premises was gross misconduct, while the disciplinary policy only dealt with employees under the influence of alcohol. They also noted that it seemed as though the employer themselves was somewhat unsure about what their policies actually said.
This case is a useful reminder to employers of the need to have in place clear, unambiguous policies appropriately communicated to their employees.