Can you dismiss an employee for smelling of alcohol?

In the recent case of McElroy v Cambridge Community Services NHS Trust, the Employment Tribunal considered that a worker was unfairly dismissed after a colleague reported him as smelling of alcohol at work.
In this case, the worker who was employed as a Healthcare Assistant and who had over 10 years service was suspended pending a disciplinary investigation after his colleague reported that he had arrived into work smelling of alcohol. The circumstances were referred to occupational health.
The disciplinary investigation sought to consider allegations that the employee had attended work under the influence of alcohol and that this had led to a breakdown in trust and confidence in his ability to carry out his role. The investigation noted that there had been previous occasions when managers had expressed concern at smelling alcohol on the employee but that nobody had ever reported concerns about his behaviour or suggested that he had ever actually been drunk whilst at work. The Trust nevertheless considered that there was a disciplinary case to answer and the employee was invited to attend a disciplinary hearing.
During the course of the disciplinary proceedings, the employee admitted that he may have smelled, as alleged however he denied that he had in fact been either, unfit to work or, under the influence of alcohol when he came into work. The worker admitted that he had drunk a ‘few drinks’ during the course of the previous evening. Prior to the commencement of the disciplinary hearing, the occupational health report had been received by the Trust which declared the employee as being fit to work.
During the disciplinary hearing the disciplining officer became aware that the employee had been admitted to hospital with a condition that is commonly associated with excess alcohol consumption. The disciplining officer felt that this was relevant to the issues to be determined and so the disciplinary hearing was adjourned whilst a second referral to occupational health was made.
The employee refused to participate in the second referral and asked to be allowed back to work. His request to return to work was denied and the disciplinary hearing was adjourned. The employee restated his contention that he had not been drunk whilst at work however, his employment was terminated on this basis. The worker appealed his dismissal however it was not upheld.
The matter was referred to the employment tribunal which held that the dismissal had been unfair. The tribunal found that smelling of alcohol at work was not by itself sufficient to constitute gross misconduct justifying dismissal under the employer’s disciplinary policy and substance misuse policy. The employment tribunal also highlighted the fact that whilst this was a dismissal for gross misconduct, there was no evidence of impairment to his functions or the carrying out of his job properly.
Howarths’ Say
Whilst this is an Employment Tribunal judgment and therefore not binding on other Tribunals, it should serve as a reminder to employers of the need to ensure that they follow the correct procedures when dealing with disciplinary matters and that they keep their disciplinary policies and procedures under regular review. Employers should also ensure that when dealing with disciplinary matters they properly consider the allegations to be determined.