As solicitors are so fond of saying this will depend on the facts. In the recent case of McElroy - v - Cambridgeshire Community Services, Mr McElroy was dismissed for attending for work while “smelling of alcohol”. Mr McElroy was suspended and the allegation investigated. Other possible causes and explanations were put forward but at the end of the day the employers concluded that Mr McElroy had indeed attended for work whilst smelling of alcohol and they terminated his employment for gross misconduct. However the Employment Tribunal considered that Mr McElroy had been unfairly dismissed. The reason was that although Mr McElroy attended for work whilst smelling of alcohol there was no proper investigation producing a conclusion that his performance at work was in any way substandard.
Many staff handbooks contain a list of the type of behaviour which might be considered gross misconduct; often included in this is attending for work under the influence of alcohol. However, employers need to be careful; attending for work whilst smelling of alcohol may not necessarily be the same as being unable to produce a proper performance at work as a result of having had a drink. There may be a difference between having a drink at lunchtime and “being under the influence” and unless it is abundantly clear to all staff that there is a zero tolerance policy, smelling of alcohol after a lunch time drink may not necessarily form a safe basis for termination of employment.
If you require any further advice please contact Quintin Barry or Simon Dodds
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