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Unfair dismissal for smelling of alcohol at work

A recent decision of the Employment Tribunal held that an employee was unfairly dismissed for coming to work smelling of alcohol.

The case involved a healthcare assistant who was investigated following a report by a colleague that he had come to work smelling of alcohol. In reaching its decision the Tribunal highlighted that the employer had no evidence to show that the employee was “unfit for duty” through the effect of drink which was given as an example of gross misconduct in the employer’s disciplinary policy. The employer also had a related substance misuse policy which defined being “unfit for duty” as being “incapable of functioning effectively”. However, no one at the Trust had expressed any concern about the employee’s behaviour, or suggested he had been acting drunk at work. There was therefore no evidence to suggest his ability to function had been impaired.

In reaching its decision the Tribunal held that smelling of alcohol at work was not of itself sufficient to constitute a gross misconduct dismissal and criticised the reasonableness of the investigation.

Employers should ensure their policies are tailored to reflect acceptable standards in the workplace taking account of the sector. If you want to reserve the right to dismiss for this it should be specifically included in any policy. Employers may also wish to consider introducing an alcohol and drugs testing policy including the right for you to carry out an alcohol test where there are grounds to suspect an employee of being under the influence of alcohol.

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