Case of the Week: Sandsfield Gravel v Loving – drinking and driving at work

FACTS The claimant, Mrs S Loving, was employed as a park manager at Dacre Lakeside Park, East Yorkshire. This required her to tour the premises of the respondent, managing pitches and facilities for caravans. She would travel around the park in a company vehicle and her contract of employment made it clear that drinking alcohol on duty was prohibited and may be viewed as gross misconduct.

In 2007 Loving was dismissed for a series of allegations (including some contained in an anonymous letter). These included her admission that she had been given a glass of low alcohol wine by a visitor to the park; had drunk one sip of the wine and had then driven to her office at a speed of below 10mph while holding the glass out of the window of the vehicle. She then threw the glass away on arrival.

The employment tribunal held that the dismissal was automatically unfair and also found that there was no chance that the claimant would have been dismissed in any event, nor had she contributed to her dismissal to any extent, as the admitted offence was so minor that it could not have justified dismissal. The respondent appealed to the employment appeal tribunal (EAT) on both points.

DECISION The EAT rejected the appeal against the decision that the dismissal was automatically unfair. The respondent, Sandsfield Gravel, had not sufficiently informed the claimant of the basis of its view that Loving was guilty of misconduct regarding additional allegations other than her admitted drinking. The claimant had only been provided with an anonymous letter containing a series of un-particularised and nebulous complaints.

The EAT stated that the claimant must be informed of the nature of the behaviour, the dates when it is alleged to have occurred and the persons making the allegations in order that compliance with step 2 of the statutory procedure would be made out. The EAT allowed the appeal against the finding that there was no chance that the claimant would have been dismissed after a fair procedure and that she had not contributed to her own dismissal. It concluded that the employment tribunal had substituted its own decision for that of the respondent and that the decision was perverse.

In the light of the respondent’s zero tolerance attitude to alcohol and good industrial relations practice, dismissal was at least a potential outcome. The EAT stated that it considered that the employment tribunal had “tended to trivialise” the claimant’s conduct. It allowed the appeal and remitted the case to a differently constituted employment tribunal.

IMPLICATIONS This decision raises important issues regarding the fairness of a dismissal in the context of a zero tolerance policy towards alcohol at work. It also clarifies the extent to which information must be provided to an employee before a disciplinary hearing to secure compliance with the now repealed statutory dismissal procedures. (NB the procedures still apply in some cases post-April 2009 under transitional provisions).

This decision also indicates that a significant measure of information is required under the terms of the statutory dismissal procedures to achieve compliance with them when dealing with a case involving informants. Essentially, an employee must be provided with a particularised case to which they can respond. The decision also suggests that in the presence of a written zero tolerance policy to alcohol at work,even minor breaches are likely to be viewed by an employment tribunal as justifying dismissal. Arguably this approach conflicts with an earlier decision of the EAT in Draper v Mears, which stated that one could still have a de minimis breach of a zero tolerance policy to alcohol.