The Claimant was employed by the NHS as a healthcare assistant and was investigated following reports that he came into work smelling of alcohol. The Claimant insisted that this was due to him drinking a few beers the night before but he was suspended pending an investigation under the Respondent's disciplinary policy. There were no reports of Mr McElroy acting drunk or attending work whilst unfit through alcohol.
The situation was also referred by the Trust to its Occupational Health department. The Occupational Health report that was obtained provided that Mr McElroy was fit to return to work and that any future concerns should be dealt with by referral to the substance misuse policy, and a further referral to Occupational Health. Following the Claimant's admission to hospital for health issues potentially related to alcohol abuse, the Trust requested that he attend a further Occupational Health appointment but he refused to do so. When disciplinary proceedings were continued, Mr McElroy was dismissed. His appeal was unsuccessful and he raised a claim for unfair dismissal in the Employment Tribunal.
The Employment Tribunal highlighted the fact that whilst this was a dismissal for gross misconduct, there was no evidence of impairment to his functions or the carrying out of his job properly. The Tribunal held that smelling of alcohol at work was not, by itself, sufficient to amount to dismissal for gross misconduct under either the Respondent's disciplinary policy and procedure, or the substance misuse policy that they had in place, and that the dismissal was therefore unfair.
Whilst this is an Employment Tribunal judgment and therefore not binding on other Tribunals, it should serve as a reminder to employers of the need to ensure that they follow the correct procedures when dealing with disciplinary matters and that they keep their disciplinary policies and procedures under regular review.