Unfair dismissal – a sobering case for employers?

In a case that is of particular relevance to healthcare providers, who have to balance the difficult issue of complying with their duties towards patients and their obligations to staff, an Employment Tribunal (ET) has found that an NHS trust unfairly dismissed an employee for smelling of alcohol on duty.
The case provides a helpful reminder for employers on the steps to take when handling concerning staff behaviour to avoid costly litigation.

Summary of Facts

The employee (Mr M) had worked for an NHS trust as a healthcare assistant for around 10 years.  Mr M’s manager was informed that Mr M had arrived at work smelling of alcohol.  The manager spoke to him and took the same view. Although Mr M advised that he had only consumed a few beers the night before. Mr M was suspended pending an investigation. At the same time he was referred to Occupational Health (OH), which found him fit to work.

The investigation found there were no issues with Mr M’s performance on the day in question (or more generally) but it came to light that there had previously been concerns that he smelt of alcohol but no action was taken at the time.  Mr M stated during the investigation that he had not been drunk at work and that he thought colleagues might have smelt his aftershave or hospital alcohol gel.

Mr M’s manager became aware that he had been admitted to hospital for oesophagitis, which can be associated with excessive alcohol consumption and she therefore requested he attend another OH appointment but he refused.

At a disciplinary hearing Mr M was dismissed for gross misconduct on two grounds, namely:

  1. being under the influence of alcohol at work; and
  2. failing to follow a reasonable management instruction by not attending a further OH appointment.

Following an unsuccessful appeal Mr M raised proceedings in the ET for unfair dismissal -the ET found in Mr M’s favour.

ET decision

The ET found that:

  • a public body with a statutory duty to provide proper care to its patients, needs to be vigilant in maintaining the appropriate standards of conduct;
  • there was no doubt Mr M smelt of alcohol and as such his explanation of only having consumed a few beers was unlikely;
  • it was reasonable in the circumstances for a second OH referral and Mr M acted unreasonably in refusing to attend;
  • unfit for duty meant incapable of functioning effectively at work through alcohol consumption and there was no evidence to show Mr M was in fact unfit for work/had been drunk at work;
  • in determining if smelling of alcohol was sufficient to constitute gross misconduct, a question had to be asked about why action had not been taken previously when there had been concerns; and
  • the trust could not rely on Mr M’s refusal to attend OH as a reason to dismiss, as Mr M was never told/aware that this matter was being considered as part of the disciplinary investigation/process.

The Judge therefore concluded that a reasonable employer would not have treated the conduct as sufficient to justify dismissal.

Key lessons for practitioners

There is nothing wrong with being concerned about an employee smelling of alcohol at work, or indeed having concerns about other matters that might impact on patient care/services. Indeed the ET recognised that healthcare providers are entitled to be scrupulous in setting standards.  However, conclusions must be fully supported by evidence even in the health-care context.

Practical tips for dealing with staff concerns

Practitioners should try to take a measured approach to staff concerns and consider the following:

  • Speak to employees informally and give them an opportunity to rectify problems where appropriate by reference to: the issue/the employee’s role/patient care;
  • When investigating allegations, clearly inform employees what those allegations consist of at the outset and ensure that the “charges” are fully framed and issued to the employee before a disciplinary hearing;
  • Always consider the appropriateness of sanctions short of dismissal, which can potentially be relied upon if there are further conduct issues;
  • Keep all policies, especially disciplinary policies, under review and avoid departing from them unless there is a compelling reason to do so;
  • Ensure the individuals hearing the disciplinary and, if necessary, appeal hearings are aware of all the relevant policies/procedures and apply them reasonably and proportionately to the circumstances; and
  • If in doubt take legal advice.