The World Cup is now over and the vast majority of the country’s workforce is now back to the normal routine. However, for a handful of workers, there will still be the hangover of potential criminal proceedings, usually following incidents involving too much drink and boisterous celebrations.
Q Will employers be able to take disciplinary action against these employees?
A This situation highlights a difficult issue for the employer. Where a criminal offence is committed in the workplace, the option of dismissal is a relatively easy-to-reach conclusion. However, being drunk and disorderly, committing assault and hooliganism, while unpleasant, are not usually connected to an employee’s day-to-day duties, so disciplinary action may often not be appropriate.
Q Are there circumstances where being drunk outside the workplace would be grounds for a fair dismissal?
A An employer will rarely have fair grounds to dismiss an employee just because they have drunk too much alcohol outside the workplace. It would be likely to infringe human rights to restrict the conduct of the employee to that extent. However, there may be exceptions where the nature of the business and the employee’s position would make such behaviour unacceptable. For example, there may be health and safety issues, and the employer may have a policy that restricts the right of the employee to drink alcohol even out of hours. This sort of rule may apply to bus drivers or aeroplane pilots. In such a situation, any human rights issue would be counter-balanced by the right of the employer to take steps to ensure safety.
In areas where safety is not critical, tribunals are increasingly suggesting that employees who have a drink problem should be treated as being unwell and that, rather than invoking the disciplinary process, employers should follow the capability procedure instead.
Q Would there be grounds for dismissal if a manager was charged with a drink-related offence, such as being drunk and disorderly or assault?
A Even in circumstances where a manager has been charged with a criminal offence connected to drinking, it may not be grounds for dismissal. Again, it will depend upon the particular facts. Before deciding on what action to take, you should take into account their duties and assess whether the conviction will have any impact on their ability to do the job. Clearly, higher standards will be expected of a senior employee.
Q What if there is a report in the press about the charges and the organisation is mentioned in the report?
A It would be unusual for the employer to be mentioned in a press report where the allegations are completely unconnected to the workplace. However, if the report has caused bad publicity for your organisation and there is a potential impact on the business, there may be grounds for dismissing the employee. For the purposes of defending a claim in the tribunal, the dismissal would be for ‘some other substantial reason’ since the employee’s conduct has brought the business into disrepute, even though it may not have breached any company rules.
Q Would it make any difference if the employee was charged with using or being in possession of drugs?
A In dealing with claims of unfair dismissal, tribunals appear to be less sympathetic to claimants who have been under the influence of drugs rather than alcohol. This is probably due to the fact that taking drugs is against the law, whereas the employee who has been drinking alcohol has not committed a crime.
You would need to take into account all the circumstances, including the type of drugs, the amount involved, the charges and, most importantly, the duties of the employee. Whether a drug conviction would prevent an employee from continuing their work could depend on the nature of the job – for example, if it involved having access to drugs in a hospital or care home.
Q What if the employee is given a custodial sentence?
A If the employee has been sent to prison, then you should consider the length of the sentence and make enquiries as to when they would be available for work. An employee may be able to return to work much quicker than the period to which they have been sentenced due to early release arrangements. You will need to take into consideration the firm’s resources and the impact of the employee’s absence. If the employee has a key role and the sentence is for a long period of time, then it may be reasonable for you to dismiss them. If the sentence is short and there are sufficient resources to cover their role on a temporary basis, it may be wiser to wait.