Drinking at work is not illegal in office spaces, however it would be an offence if for example driving vehicles or operating machinery. Taking alcohol during work is likely to be detrimental to performance, so a prudent business would bar consumption during working hours using a drugs and alcohol policy document. This would typically prohibit taking alcohol before work or during breaks as well as setting out appropriate guidance for work related events. It may also state that turning up for work under the influence, or drinking in work would be considered gross misconduct and become subject to the usual disciplinary procedure. It may be balanced with details of confidentiality and support on offer for colleagues that may have a drinking problem.
Although alcohol dependency is not a protected characteristic under the Equality Act, there are often underlying physical or mental health issues that are contributing to the alcoholism that could be construed as a disability; it is therefore important to consult with the individual considering any reasonable adjustments necessary to support their performance at work, while avoiding any acts or omissions that may discriminate against them.
In McElroy v Cambridge Community Services NHS Trust (2015), the Employment Tribunal (“ET”) found that Mr McElroy’s dismissal was unfair due to the lack of evidence that he was actually ‘unfit to work’. He had shown up for work as a healthcare assistant smelling of alcohol and he was promptly suspended pending investigation into the conduct. There was a side issue of his failure to attend an Occupational Health (“OH”) meeting which was also brought as part of the disciplinary hearing.
At first glance this may appear straightforward, however the ET looked closely to the wording of the Trust’s policy to review the dismissal. They concluded that no reasonable employer would have dismissed without clear evidence that Mr McElroy was ‘incapable of functioning effectively at work’ as set out in their own policy (there were also no records of previous warnings issued). The ET also found that the failure to attend OH was never communicated to Mr McElroy as a misconduct, and in any case the referral was supposed to be a supportive step for the employee and was not in itself a ground for disciplinary action.
The case highlights potential deficiencies around the alcohol policy of the Trust if they intended ‘smelling of alcohol’ to amount to a misconduct; however, it raises questions about the specific management of the employee by the employer. It was revealed that Mr McElroy had on several previous occasions arrived at work smelling of alcohol, but there was no management intervention offering support, exploring the issue or reprimand for the employee. The complexities are highlighted further in the investigation report which stated that there were never any complaints about the work carried out by Mr McElroy and that his patients consistently like him in the performance of his duties. This seems to indicate that a conversation from a position of support and guidance was probably most relevant at this point.
Managers should always look out for warning signs of alcohol dependency such as lateness, focus, quality of work, moods, neglecting appearance, shaking or excess use of breath mints. In the first instance this should lead to a non-confrontational meeting and a plan of action for the employee to move forward. If you are aware of any issues within your business or require support developing a policy, don’t hesitate to call one of the team on 0161 884 1888 or email [email protected] for assistance.