Q If an employee returns from a lunch break and appears to be under the influence of drink, can you dismiss them? And if so, what procedures can you follow?
A Staff with responsibilities involving driving or care of machinery may risk the health and safety of themselves and others if they drink while on duty.
Their behaviour may justify dismissal for gross misconduct. But employers must follow a proper procedure. One aspect of that procedure is to establish whether they would have known that this conduct was a serious breach of their duties.
The first step is to look at your employment documentation to see whether it lists drinking as an example of gross misconduct.
Q How can I prove that the employee was actually drunk? Can I ask for a blood test?
A In some industries, it may be reasonable to ask for a blood test, and this would be covered in the employment contract. However, in most cases, you will require the employee’s consent. The information resulting from such a test is sensitive information under the Data Protection Act and any medical professional carrying out a test is subject to the Access to Medical Reports Act. Employers are frequently unable to obtain blood tests.
Q Given the new disciplinary rules, what process do I follow?
A The updated disciplinary procedures, introduced on 1 October 2004, should be followed carefully. They do not change the requirement to act fairly and reasonably and to undertake an investigation, but they do make it essential for an employer to take certain steps when disciplining an employee, if dismissal is a possible outcome.
In particular, the employer must be given a written statement of the nature of the employee’s conduct that may result in dismissal, and the employee must be informed of the basis of the complaint and provided with the results of the investigation. Also, the employer must invite the employee to a hearing at a reasonable time and place where the matter can be discussed.
In practice, much of this is likely to be your normal procedure, and so if you do not have updated procedures, you must adjust your normal procedure to comply with these requirements.
Q How much detail should the statement of conduct include?
A The statement must be clear, and your reasoning for the disciplinary action must be explained. If the employee staggered, smelled of alcohol or slurred their speech, this should be spelt out. Follow this up with detailed statements and any other evidence accumulated during your investigations. This should be sent to the employee in good time to allow them to consider it before the hearing.
Q What happens if the worker argues they were not drunk?
A Listen carefully to the employee’s explanation and follow anything up. For example, if the employee cites medical treatment that disagreed with them, investigate this. Although the rules have changed, the basic requirement that the employer must act reasonably still remains. The tribunal will expect the employer to have carried out a reasonable investigation.
Q If I still believe the employee was drunk and that there was no reasonable excuse for this, can I dismiss them?
A You must take the employee’s circumstances into account and consider any mitigating elements. Consider the impact their conduct had on the business. If clients were present, or the employee was in a position of significant responsibility, dismissal may be appropriate. If your rules clearly stipulate that drunkenness is gross misconduct, you may also be able to dismiss, but in other cases, this may only merit a warning.
Q If I dismiss, what happens next?
A Inform the worker of your decision, and offer a right of appeal. If they take up the appeal, it should be carried out by a more senior manager, and must take place within a reasonable timeframe.
There is no set period of time that is defined as ‘reasonable’ – much depends on the employer’s circumstances. Bit in many cases, this can be carried out within two weeks.
Q Is there any other way of dealing with this if the employee was grossly drunk?
A The new rules include a modified dismissal procedure, which applies in limited circumstances where the dismissal takes place at the time the employer becomes aware of the gross misconduct, or immediately after. However, be cautious. In effect, it allows for instant dismissal with a right of appeal to follow. In practice, however, tribunals may find it difficult to accept, given there is usually an alternative of immediate suspension, followed by a disciplinary process.