28th September 2021

Thou shall have a fishy… and wash it down with three beers. Unfair dismissal of worker for consuming alcohol before shift.

Thou shall have a fishy… and wash it down with three beers Unfair dismissal of worker for consuming alcohol before shift

Many employers have detailed policies and procedures setting down the ground rules in respect of the interplay between alcohol (and usually drugs too) at work.  Typically, we see policies which prohibit the possession, supply or consumption of substances at the workplace.  There might be a provision for random testing and such policies will mostly prohibit attending work when “unfit for work” due to the effects of alcohol or drugs, or “under the influence of” alcohol or drugs.   The purpose of such policies is self-explanatory – health and safety considerations will be high on the agenda, among other factors. 

In Krolik v Youngs Seafood Limited, Ms Krolik (the claimant) raised an employment tribunal claim against her former employer.  She was engaged as a Key Operative involved in the slicing and packaging of salmon at a seafood plant in Livingston.  She attended work one day for a 2pm shift and was called for a briefing where the staff were told they had to use holidays to enable a change in shift pattern.  She spoke out loudly at the briefing against being forced to take holidays.  When called in by her manager afterwards, she apologised. The claimant is Polish and, during this discussion with the manager, another Polish colleague was present. This Polish colleague subsequently reported the claimant to the manager for allegedly smelling of alcohol.  The manager asked the claimant about this and she confirmed having had 3 beers the night before, prior to 5am owing to having trouble sleeping. 

The claimant was then spoken to by the H & S manager. During the course of this discussion, she noticed a breathalyser on the desk and offered to blow into it.  This offer was not taken up and she was subsequently suspended owing to the Company’s “zero tolerance” approach. During the investigation, the claimant admitted to having drunk 3 beers some 8 or 9 hours before the start of her shift.  She explained that she had an alcohol problem and that she had already contacted her GP to seek help.  The matter progressed to a disciplinary hearing during which the claimant was asked if she felt that she was under the influence of alcohol at the time.  She said that she felt normal.  She reiterated that she felt like she had a problem whereby she drank when she was stressed. 

The claimant was dismissed for gross misconduct.  She was not referred to occupational health. It was decided that her admission about having a problem with alcohol was being used as an excuse. She appealed the decision referring to her 11 years’ loyal service, but this was unsuccessful. She sued for unfair dismissal.

The tribunal found in Ms Krolik’s favour and she won her case. The investigation was found to be lacking, and the employer’s finding was akin to an employee having consumed 3 beers before 11pm, gone to bed and attended work the following day at 9am (half the population would be sacked every day on this analogy). The decision to dismiss was outwith the band of reasonable responses.  The employer had placed too much emphasis on the fact that the claimant had only admitted to having a problem “after she had been caught”, despite their own policy stating that a manager should speak to anyone about whom they had concerns regarding alcohol problems, or raise it with HR. The tribunal also criticised the Company for not referring her to occupational health before making the decision.

If you have any questions about substance use or misuse in the workplace, please contact a member of the Blackadders Employment Team working in Aberdeen, Dundee, Edinburgh, Glasgow and Perth.

Jack Boyle, Director at Blackadders LLP
Jack Boyle, Director
Accredited by the Law Society of Scotland as a Specialist in Employment Law
Employment Law
Blackadders LLP
@EmpLawyerJack

www.blackadders.co.uk    

 

 

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