Mr McElroy, the Claimant in this case, was employed by an NHS Trust, and had direct responsibility for patients. The Employment Tribunal agreed that he did come to work smelling of alcohol, but that his subsequent dismissal for gross misconduct was unfair, even though it had happened before. Why?
Although there had been several incidents in the past, which had not been the subject of the Trust’s disciplinary procedure, Mr McElroy was picked up on this occasion. He gave a number of inconsistent reasons for the smell of alcohol, including his aftershave, having eaten garlic, having had 2 cans of beer the night before, and using the hospital’s hand disinfectant.
The Trust’s disciplinary and substance misuse procedures were very significant in this case. These referred to the ability to dismiss, but only where the employee is unfit for duty. This was not the case here.
Mr McElroy was also dismissed for failing to attend an occupational health meeting to deal with the alcohol issue. This was not, however, raised as a disciplinary issue with him. Furthermore the relevant policy did not state that a refusal to participate would amount to a disciplinary offence.
For these reasons, Mr McElroy was found to have been unfairly dismissed.
Employers should review their policies to make sure that they are tailored to incidents such as these. The result in this case would have been completely different if it had forbidden the drinking of any alcohol at all. Furthermore, the NHS Trust should have been clear that they expected Mr McElroy to attend the occupational health meeting, and that this was to be deemed as a reasonable instruction, rather than as a helping hand.
This is a good example of the type of forensic approach a Tribunal can take, where, on the face of it, the outcome would appear to be obvious.