The recent employment tribunal decision in McElroy v Cambridgeshire Community Services NHS Trust sheds light on traps employers can fall in to when looking to dismiss an employee for misconduct in what might seem a straightforward situation and highlights how a different approach could have achieved an entirely different outcome.

Facts

Mr McElroy had been employed by the Trust since July 2003. In August 2013 a colleague reported to his line manager, Ms Bannister, that he smelt of alcohol. This allegation was then escalated to Ms Bannister’s line manager, Ms Dance, who decided to refer the matter to the Occupational Health department and suspend Mr McElroy pending a disciplinary investigation on the grounds that he had reported for work under the influence of alcohol, which had led to a breakdown in trust and confidence.

The Trust’s disciplinary policy clearly stated that being unfit for duty due to alcohol constituted gross misconduct. The substance misuse policy defined unfit for duty as being incapable of functioning effectively. The policy recommended that employees avoid drinking shortly before work but did not ban it.
During the investigation Mr McElroy provided a number of possible reasons to explain the smell of alcohol, which the Trust considered to be inconsistent. Mr McElroy had previously been accused of smelling of alcohol but no action was taken against him and there had been no concerns about his behaviour or performance of his duties.

Ms Dance decided disciplinary action was warranted. Before the disciplinary hearing took place, Mr McElroy attended an initial Occupational Health appointment and a report was prepared confirming he was fit for work. However, by now Ms Dance was aware of a hospital admission that she felt could have a bearing on the situation. Occupational Health had not known of that admission at the time of their report and Ms Dance therefore concluded that an additional report was required. She requested that Mr McElroy attend a further appointment, which Mr McElroy refused to do.

The Trust’s substance misuse policy stated that refusing medical help would not in itself result in disciplinary action but that continued refusal of treatment would result in the disciplinary policy being applied.

The Trust dismissed Mr McElroy for gross misconduct citing as the reasons for dismissal the original charge of smelling of alcohol alongside an additional charge of failure to follow a reasonable management order in refusing to attend the second Occupational Health appointment.

The dismissal letter also stated that they had made the finding on the original charge due to his inconsistent accounts and statements from colleagues which led them to find that he was placing himself, colleagues and patients at risk.

What is fair?

When deciding whether a dismissal is fair the tribunal will consider whether in the circumstances the employer acted reasonably in treating the reason as sufficient to warrant dismissal. If the ground for dismissal is misconduct then an employer will need to assure itself:

  • That they believe that the employee was guilty of the misconduct;
  • That they have reasonable grounds for believing that the employee was guilty of the misconduct; and
  • That they carried out as much as an investigation as was reasonable in the circumstances.

Outcome

The Judge found that, on the facts, it was reasonable to have concluded that Mr McElroy had attended work smelling of alcohol and further that he had acted unreasonably in refusing to attend a further Occupational Health appointment.

However, unfortunately for the employer, the employment tribunal found that Mr McElroy had been unfairly dismissed because of the reasoning behind the dismissal and numerous errors in the disciplinary process.

The Trust’s policy gave being unfit for duty as an example of gross misconduct but the Judge found that no reasonable employer would have found that Mr McElroy was unfit for duty based on the investigation carried out. In the absence of a finding that he was unfit for duty, smelling of alcohol alone could not be classified as gross misconduct. The decision to dismiss itself included a charge which had not been put to Mr McElroy and in these circumstances a reasonable employer would not have found that charge proved.

Comment

It is a long standing principle that an unfair dismissal claim will be judged on its individual merits and that decisions tend therefore to be case specific. Decisions of the employment tribunal can nevertheless be useful to compare with a situation you are presented with when deciding how you should proceed.
Had the Trust handled the dismissal differently, it may have been fair. Lessons can be learnt from this case to protect against claims which have a root cause which should justify dismissal:

  • Substance misuse policies should be tailored to the specific needs of an employer’s business and any departure from the norm should be justified.
  • Even if the action may only result in a verbal warning, full disciplinary action should be taken and a written record kept as and when incidents arise.
  • Only charges which have been put to the employee should be used as grounds for dismissal. The disciplinary process should be kept under review and if further information comes to light during the process further charges should be put formally to the employee.
  • Prior to embarking on a disciplinary process, review the initial facts and the relevant policies before commencing the investigation.
  • Spend time considering whether the sanction you are issuing is within the range of responses you would expect of a reasonable employer.