Q&A: What can I do about the impact of the Christmas Season?

December 2004

Your questions on Employment Law answered by Niall Kilfoil, solicitor in the Employment Department at Clarkson Wright & Jakes

Q I am concerned about the impact the swiftly approaching Christmas Season is going to have on our work force, particularly employees arriving at work or returning from lunch drunk or late. What can I do?

A Drinking in itself is not misconduct and arguably no business of the employer. However, use of alcohol by employees frequently coincides with poor work performance, poor attendance and punctuality, acts of misconduct, lack of care for safety which impact on the working relationship.

All of the above may justify disciplinary action by the employer but dismissal may be justified only if it is one of the five potentially “fair” reasons. The relevant reasons in connection with alcohol are “conduct” and “capability”. Therefore any disciplinary action taken in connection with alcohol (or indeed drugs) will be potentially fair.

The key factor is whether the employer acted reasonably in deciding to apply a disciplinary sanction. In deciding this, one of the most important factors is whether the misuse of alcohol should be regarded as an example of misconduct, or lack of capability. The key difference is that employment tribunals are less likely to be sympathetic to an employer who imposes a severe disciplinary sanction if it is in respect of capability as opposed to misconduct.

Where the action is taken in respect of capability the employer will almost never be justified in dismissing the employee following a single incident. Rather an employer will be required to obtain expert medical information before taking any action.

Even if you have no written policies, drinking or being drunk would usually amount to gross misconduct if there is a safety issue. For example, 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. In such cases you would be expected to follow a proper and fair procedure which would include establishing whether the employee would have known that their conduct was a serious breach of their duties.

Generally employers may make whatever rule they see fit about alcohol including banning alcohol from the premises. Where such a rule is applied consistently and taking into consideration mitigating circumstances in each case, a dismissal will usually be fair even for a single offence. However, if you suspect the employee is an alcoholic it is likely to be unfair to dismiss without getting medical advice first and considering the alcoholism as a mitigating factor. You may regard this as a health issue and may wish to take a different or sympathetic approach which involves getting appropriate treatment for the employee.

If an employee turns up for work obviously worse for drink from the night before and therefore totally unproductive or arrives late or not at all because of drink, then this is likely to be regarded as misconduct which should be addressed through disciplinary proceedings.

You must carry out an appropriate investigation at the time, ideally with a witness present, although this is not vital. Ask the employee to explain his behaviour and condition, and record both their answers and your impression.
For example, if the employee was unsteady on their feet, smelled of alcohol or slurred their speech you should record this. Your opinion based on this investigation is sufficient grounds for action. If on balance you believe the employee is unfit for work, you are entitled to send them home and subsequently ask them to attend a disciplinary hearing.

Where an employee argues that they were not in fact drunk then you should listen carefully to their explanation and undertake a reasonable investigation, for example if the employee claims the reason for their behaviour was due to medical treatment disagreeing with them.

In some sectors it may be reasonable to ask the employee for a blood test. However, this cannot be done without the employee’s consent and any information resulting would amount to sensitive information for the purposes of the Data Protection Act. Furthermore any medical examinations would be subject to the Access to Medical Reports Act.

If you believe that the employee was drunk and there is no reasonable excuse for this, an employment tribunal will still expect you to act reasonably. This involves taking into account any mitigating circumstances, for example, the impact their conduct had on them, on your business and whether clients were present, or the degree of responsibility of the employee’s position.

When an employee goes out for lunch during office hours and has a few drinks, it is unlikely to be misconduct, particularly if it is accepted practice and the work does not suffer. For example, if a job entails the entertainment of clients the activity may not only be accepted but expected.

Whilst there is no legal requirement, it is best practice to adopt a clear written alcohol policy and communicate it to all members of staff. If you do not have one you should in any event take steps to clarify to your employees what is and what is not acceptable behaviour ahead of the run up to Christmas so that if a situation arises involving excessive consumption of alcohol, you have in place a framework to help you deal with it appropriately and fairly.