As HR director of a newspaper publishing group I’m dealing with the case of a long-serving employee who is clearly an alcoholic and whose behaviour and language is upsetting some of his colleagues, although most don’t seem to mind. I’d like to dismiss him, but fear he will take legal action and dismissal may will breach our own code of conduct on drugs and alcohol issues, as it focuses – initially at least – on helping staff deal with these issues rather than dismissing them. What courses of action are open to us?
You need to strike an appropriate balance between the company’s policy of supporting people with alcohol dependency issues and dealing with the employee’s alleged misconduct.
You should first consider the precise wording of the company’s code of conduct on drugs and alcohol. If it is stated to be contractual in nature then any dismissal, even if fair, may lead to a breach of contract claim. You should consider in any event whether there are good reasons for dismissal rather than providing assistance to this employee through counselling or other medical help. Are the actions of this employee sufficiently serious to justify departure from the code?
You also need to consider the risks of an unfair dismissal claim if you are contemplating dismissal. The fact that this employee has upset some colleagues through his language and behaviour does not necessarily constitute gross misconduct. You should investigate thoroughly the alleged language and behaviour in question. Has the employee actually been under the influence of alcohol while in the workplace? Has he been abusive or aggressive in a way that would constitute gross misconduct? Do his actions constitute harassment under any anti-discrimination legislation?
The fact that most employees do not seem to mind could be relevant, although harassment under anti-discrimination legislation is assessed primarily from the subjective viewpoint of the victim.
Alcoholism is expressly excluded from those conditions that constitute a disability for the purposes of the Disability Discrimination Act so there is no requirement as a matter of law to make reasonable adjustments to take account of this ‘condition’. However, you should consider whether the employee might have a related mental impairment, such as clinical depression, which might require reasonable adjustments.
Remember too that other staff could bring harassment claims if you fail to adequately address the issue. In case of dismissal fair and statutory procedures to avoid an automatic dismissal claim and compensation uplifts of between 10% and 50%.
Adam Fuge, partner, Matthew Arnold & Baldwin
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