What would you do if an employee were to raise a concern that a colleague may be coming to work smelling of alcohol? And what if their job involved operating heavy machinery which may consequently pose a risk to health and safety? How would you handle this?

On face value, it would seem obvious that this matter shouldn’t be ignored but there are a couple of issues that would need to be taken into account initially. Firstly, how can an employer attempt to deal with an alcohol-related allegation which may not be true? You would expect the suspected employee to deny any wrong-doing and, indeed, that individual may have good grounds for complaining of such allegations as being spurious and vexatious.

Employers have a legal duty to protect the health and safety of their employees and others. Part of this duty is to take action where there are grounds to suspect an employee of being under the influence of alcohol (or drugs), particularly where the work involved may pose a safety risk which applies in the case of operating heavy machinery.

The GB Health and Safety Executive’s 'Don't mix it' guide provides advice on dealing with alcohol-related problems at working including drinking outside working hours. It warns: 'If you knowingly allow an employee under the influence of excess alcohol to continue working and this places the employee or others at risk, you could be prosecuted’.  Clearly this problem would need to be addressed.

The Health and Safety Executive suggest a four-step process for dealing with alcohol problems at work:

• Step One involves finding out if there is a problem by looking at the information you have on sickness absence, for example, or talking to employees about what they know about the effects of alcohol on health and safety.
  
  
• Step Two goes on to provide guidance on deciding what to do to tackle alcohol issues including looking at whether it is acceptable for staff to consume alcohol during working hours and how to deal with an employee who turns up to work drunk.
  
  
• Step Three involves taking action including consideration of whether current or future staff know the company's rules about drinking and whether anyone needs more information or training.
  
  
• Finally, Step Four involves the regular monitoring and reviewing of processes that you have in place for tackling alcohol at work.

Based on this, a good starting point would be to check the wording of the company's ‘Drugs and Alcohol Policy’ (if one exists) including any guidelines around drugs and alcohol testing. Is there a requirement to provide refresher training and reissue the ‘Drugs and Alcohol Policy’ to staff?

Next, the matter should be discussed with the suspected employee's line manager to ask them to be vigilant to any signs of alcohol consumption by the employee. It should be highlighted to the manager that the allegations at this stage may well be unfounded so any monitoring should be carried out discreetly. Following this, any suspicions should be addressed in a timely manner.

So, let's say that the line manager suspects the employee of smelling of alcohol. Is this a ground for dismissal? The answer is generally ‘no’. Employers need to tread carefully here. The above Health and Safety guide provides some useful pointers for dealing with an employee with a possible alcohol problem:

• Employees with a drink problem have the same rights to confidentiality and support as they would if they had any other medical or psychological condition.
• Disciplinary action should be a last resort. A court may find a dismissal unfair if an employer has made no attempt to help an employee whose work problems are related to drinking alcohol.
• The cost of recruiting and training a replacement may be greater than the cost of allowing someone time off to obtain expert help.
• Many people with an alcohol problem are able, in time, to regain full control over their drinking and return to their previous work performance.
• It may be very difficult for people to admit to themselves or others that their drinking is out of control. They need to know that you will treat their drinking problem as a health problem rather than an immediate cause for dismissal or disciplinary action.
• If an employee’s drinking is a matter of concern, they should be encouraged to seek help from their GP or a specialist alcohol agency.

Finally, the cost of getting it wrong can be high. The following Employment Tribunal case sits well with the title of this article. In the case McElroy v Cambridgeshire Community Services NHS Trust ET/3400622/14 , the employer was found to have unfairly dismissed a healthcare assistant who had come to work smelling of alcohol.

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 drunk 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 that 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.

So in summary, dismissal should be a last resort when dealing with alcohol-related problems in the workplace and all reasonable steps should be taken in advance to help and support that employee in line with your duty of care.