The problem
You suspect one of your employees has a problem with alcohol. His attendance record has worsened and his performance at work is suffering. He is red-faced and not as "on the ball" as usual. You think he might be drinking during his shifts at the hotel. What should you do?
Expert advice
You should not form immediate conclusions but investigate the facts before arranging any sort of disciplinary hearing. Then arrange a meeting with the employee to discuss your concerns. Conduct the meeting promptly, informally and in private. Adopt an uncritical but inquiring approach at this stage.
Establish what the problems are and the reasons behind them. Without proper investigation do not immediately assume that this is a case of misconduct. For example, are there any underlying medical problems of which you are unaware? Has the employee been under particular stress at work which has led to his poor performance? Greater tolerance is expected if the issue is one of ill health.
At the end of the meeting tell the employee that you need to consider all the information and may need to speak to him again. You might need to get a medical report on his condition from either his GP or the company's occupational health doctor. Warn him you might need his written consent for this and then consider whether he is well enough to be at work. You could suggest a short period of paid leave to review the information.
Drinking during the day and turning up to work intoxicated can amount to misconduct. But erratic behaviour can be part and parcel of an underlying medical illness. The Advisory, Conciliation and Arbitration Service's Code of Practice on Discipline at Work states that employers should consider measures to help employees suffering from the effects of alcohol, or drug, abuse.
Is the employee capable of doing the job? Misconduct or poor performance caused by alcoholism should be treated as an illness. In the case of Strathclyde Regional Council v Syme the Employment Appeal Tribunal decided that the employee's problem should have been treated as a medical not a disciplinary issue, which led to a finding of unfair dismissal. The employer in this case did not seek medical advice, and the alcohol problem was related to depression.
However, tribunals do recognise that there will be a point at which the employer can say, "Enough is enough." In another case, Carter v Plevshire, an employee was warned that he would be dismissed if he made no effort to overcome his drink problem. He refused to attend Alcoholics Anonymous and was dismissed. The tribunal decided the dismissal was fair, although he was unwell.
These cases demonstrate that the outcome will depend on the facts of the particular case. Always seek legal advice before dismissing in these circumstances.
The law
First check how long your employee has worked for the company. If he has less than one year's service, he would not have a claim for unfair dismissal and you could dismiss him immediately. If the company's disciplinary procedure is contractual, however, you should take care to follow the procedures to avoid a claim for breach of contract.
If your employee has more than one year's service, then you must consider whether there is a potentially fair reason for dismissing him. Should you dismiss him for reasons of conduct or capability?
Check list
* Consider how long the employee has worked with the company.
* Establish the facts.
* Arrange an informal meeting with the employee.
* Consider whether a medical report is required.
* If necessary, arrange a disciplinary hearing, but at this stage take specific legal advice.
* Do you have a drug and alcohol policy? If not, consider drafting one.
Beware!
Investigate suspicions before jumping to conclusions. Do not assume that drinking at work is always a straightforward case of misconduct.
Contacts
Steeles employment team
020 7421 1720
lonemp@steele.co.uk
Employment Law and Industrial Relations Helpline
020 7396 5100