A factory worker who was sacked for consuming three beers nine hours before her shift has been awarded more than £5,000 for unfair dismissal.
Ms Krolik, who was a team leader at Young’s Seafood in Livingston, was dismissed after admitting she had been drinking alcohol the night before her shift, which the company said contravened its policies.
The company’s alcohol, drugs and solvent abuse policy said: “It is the policy of the company to maintain and ensure a safe and healthy working environment for all its employees and to reduce the incidence of injury to person or property. To ensure such the company prohibits possession, use or sale of alcohol or illegal drugs in the workplace and requires employees to be free of it on company premises. The use of prohibited substances, whether or not during normal working hours, can result in the inability to perform work satisfaction or work safety.”
It also had a substance misuse policy which said “individuals with alcohol/ substance dependency issues are encouraged to seek help” and offered to support them “as much as is practically possible”.
On 17 August 2020, Krolik attended an employee briefing during which staff were told they would need to use some of their holiday entitlement to cover a period where a new production machine would be installed.
Krolik was angry about this and interrupted the briefing with a short comment. After the briefing, a team manager was asked to speak to Krolik about her outburst. She apologised for her behaviour, but alcohol could be smelt on the claimant.
Shortly after this was reported, another manager asked the claimant whether she had been drinking. The claimant, whose first language is Polish, admitted that she had had three beers the night before and had gone to sleep around 5am, though the language barrier meant that he thought she had had five beers. She began her shift at 2pm.
She was sent to the health and safety manager, who told her the company had reason to believe she was under the influence of alcohol. She said that she had had trouble sleeping and had the beers to help her sleep. A HR representative later informed her she would be suspended on full pay while the incident was investigated.
During a later investigatory hearing, Krolik denied she was under the influence of alcohol at work but admitted that she had an alcohol problem and had taken steps to see her GP, though they were not seeing patients face-to-face at the time. She said she needed support from her employer to deal with her alcohol issues, and noted that the company’s substance abuse policy suggested this would be offered.
A further disciplinary meeting was held later in August and the firm concluded that Krolik was using alcoholism as an excuse for her behaviour. It also believed she had changed her account of what had happened, though the tribunal found that this was due to a language barrier.
Krolik volunteered that she was experiencing menopause symptoms which influenced her emotions, which may have contributed to her outburst during the meeting.
She appealed the decision on the grounds that dismissal was too harsh; that the company’s substance misuse policy states that the company would support employees; and that she was a valued and hard-working employee who had worked for the firm for 11 years, which should be taken into consideration.
Her appeal was dismissed, with the decision letter stating: “You came to work under the influence of alcohol on Monday 17 August 2020, as a consequence your behaviour and conduct was not acceptable in front of colleagues. You came to work under the influence of alcohol which in a factory environment puts not only yourself and other colleagues at risk of injury. You did not seek help for your alcohol issues till [sic] after the incident on the 17 August 2020.”
In her employment tribunal claim, Krolik submitted that she had never heard of the company’s substance misuse policy before the investigation, although she knew about the zero tolerance policy regarding alcohol at work and that is why she had never turned to her employer for help.
She said that she was a long-serving employee and had been honest during the investigation, which meant she should have been given another chance. She wanted her employment to be reinstated.
Young’s Seafood told the tribunal that it had conducted a reasonable investigation and that, due to the health and safety implications of her actions, dismissal was its only option. It said it would not be reasonable or practicable to reinstate the claimant as it had lost trust and confidence in her.
In its decision, the employment tribunal used the “Burchell test” to consider whether the company’s decision to dismiss Krolik had been reasonable. It said that although it had a genuine belief in the claimant’s guilt, it was not satisfied that the company had reasonable grounds to believe she was being untruthful about her alcohol problem.
An employer needs to show it investigated and made its decision based on the facts in context. Only then can it move to consider punishment” – Martin Chitty, Gowling WLG
It also found that it had not carried out a reasonable investigation, with the judgment saying: “At no stage during the investigation, disciplinary or appeal hearings was the claimant asked any probing questions as to why she had interrupted the employee briefing. The respondent did not therefore follow the guidance in its own disciplinary procedure.”
It noted that the claimant had raised the fact that she was having menopause problems, but the company did not ask any questions about this, nor did it refer her to occupational health to explore whether this may have affected her behaviour during the meeting.
The tribunal suggested that Young’s Seafood should have considered referring Krolik to occupational health, as was indicated in the firm’s substance misuse policy.
“The tribunal finds that the decision to dismiss the claimant in all of the circumstances of this case did fall outwith the band of reasonable responses,” the judgment says.
“The respondent placed an unreasonable amount of emphasis on the fact that the claimant had not admitted to her drink problem prior to the incident on 17 August 2020. Nothing in the respondent’s Substance Misuse Policy requires an employee to raise the issue with their employer prior to an incident of this nature taking place.”
The tribunal found that Krolik should not be reinstated in her role as her conduct had contributed to her dismissal, but ordered Young’s Seafood to pay a £4,842 basic award for unfair dismissal and a £2,261 compensatory award for loss of earnings.
Martin Chitty, an employment partner at law firm Gowling WLG, said the case highlights that a employer’s policy is only ever a starting point.
“In any case an employer needs to show it investigated and made its decision based on the facts in context. Only then can it move to consider punishment – and that has to be reasonable in all the circumstances. If an element of that is missing then the employer is likely to lose,” he said.
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