The claimant worked as a Healthcare Assistant for the NHS Trust. He was suspended from his duties and a disciplinary investigation was initiated following an allegation that he had reported for work under the influence of alcohol. The claimant denied arriving to work inebriated claiming he had merely drank a few beers the night before. The investigation was referred to Occupational Health (OH).

It was discovered at the disciplinary hearing that senior members of staff had previously expressed concern at smelling alcohol on Mr McElroy. In contrast, the investigative report stated many patients liked him and that there were “no other negative reports about him”.

OH deemed the claimant fit to return to work and said any future concerns should be dealt with under the Trust’s Substance Misuse in the Workplace policy. It was subsequently unveiled the claimant had been admitted to hospital for a medical condition commonly associated with alcohol abuse, known as Oesophagitis. This disclosure combined with his inconsistent responses during the disciplinary hearing compelled his manager to make a further referral to the OH. This referral was necessary as his admission to hospital was relevant when considering whether he was suffering from alcoholism and whether he was putting himself, his colleagues and patients at risk.

The claimant refused to attend the second OH appointment. The Trust argued as Mr McElroy failed to attend the second appointment he had failed to comply with a reasonable instruction. The claimant brought an unfair dismissal claim before the employment tribunal. The tribunal had to consider whether the Trust genuinely believed Mr McElroy was guilty of misconduct and whether the actions of the Trust fell within the band of reasonable responses.

The tribunal said it was unlikely that Mr McElroy had consumed only two cans of beer. It was satisfied that there was clear evidence that he had attended work smelling of alcohol. It concluded a reasonable employer would have required a further OH examination given the circumstances and that Mr McElroy was unreasonable in refusing to attend the appointment but stressed a failure to attend should not of itself merit disciplinary action. The tribunal advised formal warnings should be given to employees if their conduct is not acceptable and that employees should be made aware of the risks involved in failing to comply with managerial instructions.

There was no evidence that the claimant’s performance was impaired and for that reason a reasonable employer would not have treated the smelling of alcohol as gross misconduct or conduct justifying dismissal. The tribunal concluded his termination amounted to unfair and wrongful dismissal.

Read Olga Pollock's article on alcohol in the workplace here: https://www.legal-island.com/articles/uk/features/hr/2017/jul/alcohol-at-work/