Case of the week: Unfair dismissal and alcohol policy

Sinclair v Wandsworth London Borough Council, Employment Appeal Tribunal

Facts Mr Sinclair was seen drinking alcohol on duty. During an investigation, he admitted drinking and that he was an alcoholic. Sinclair was told that drinking on duty was a serious disciplinary offence and was offered assistance from the employer’s occupational health (OH) service, which he eventually, accepted. The council issued a final written warning.

A month later, Sinclair was again unfit to work because of alcohol, and was suspended. During an investigation, he claimed any alcohol in his system was from the previous night, and said OH had referred him for counselling. In fact, no OH referral had been made.

A disciplinary hearing was held. Sinclair asked for an adjournment as he was co-operating with OH, but this was not granted. Sinclair was found to have been unfit for work through alcohol and, taking into account the final written warning, he was dismissed. Sinclair claimed unfair dismissal.

Decision The tribunal decided that dismissing an employee who had attended work under the influence of alcohol was within the band of reasonable responses. However, this dismissal was procedurally flawed. The council had not circulated its alcohol policy to Sinclair, nor to other relevant individuals, and had not made clear exactly what Sinclair needed to do to stop the disciplinary action, namely to actively seek treatment for his alcoholism.

The compensation awarded was, however, reduced to four weeks’ loss of earnings on the basis that, if the council had acted fairly, this would only have delayed the dismissal by four weeks. A further 25% reduction was made for contributory conduct.

Sinclair appealed against the reduction to his compensation, while the council appealed against the unfair dismissal finding and against the decision to limit the contributory fault reduction to 25%.

The Employment Appeal Tribunal (EAT) agreed that the dismissal was unfair, and also that the compensation should be limited to four weeks’ loss. However, the employer’s appeal against the reduction by only 25% for contributory fault succeeded.

The tribunal had been wrong to take the view that because Sinclair’s alcoholism was an illness, the alcohol-related incidents were not contributory. Generally, unacceptable conduct in employment cannot be excused by an underlying illness. Sinclair had been guilty of two serious disciplinary breaches and had misled his employer about being under the influence of alcohol drunk the previous evening. These factors should not have been ignored.

Implications This case is a reminder of the importance of publicising and following internal policies. Here, the council would have won the unfair dismissal case if it had circulated and abided by its alcohol policy.

The EAT’s willingness to view the employee’s conduct as blameworthy, despite it being related to an underlying illness, is also heartening for employers. Note, however, that the position would have been different if the illness in question had qualified as a disability under discrimination legislation. In such cases, the employee has greater protection, and employers must be cautious about disciplining for disability-related misconduct.

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