Confusion over alcohol policy meant unfair dismissal

In Liberty Living Plc v Allan Reid, the Employment Appeal Tribunal (EAT) (Appeal No. UKEATS/0039/10/BI) considered a matter where the employer company had a disciplinary policy which stated that an employee could be dismissed summarily for an act of gross misconduct and this included "being under the influence of alcohol... during working hours." The company also had an alcohol and drugs policy which said that "consumption of alcohol or being under the influence of alcohol while performing company business or in the workplace is prohibited." It went on to say that "violation of this policy can result in... discharge even for a first offence." The employee had one alcoholic drink in a bar away from the workplace during the working day.

The letter inviting him to the disciplinary hearing contained an allegation of "being under the influence of alcohol during working hours." The disciplinary policy was enclosed with the letter, but the alcohol and drugs policy was not enclosed. The Employment Tribunal (ET) found as a fact that the employee was unaware of the latter policy until it was sent to him before his appeal but after his dismissal.

The employee was dismissed summarily. He was told that the reason for his dismissal was that the consumption of any alcohol at all during the working day was gross misconduct. The dismissal letter told him under the heading that indicated he was being dismissed for being under the influence of alcohol that he was being dismissed both for consuming an alcoholic drink during the working day and for being under the influence of alcohol during working hours. At his appeal, the dismissal was upheld because he had consumed alcohol during working hours.

The ET decided that this was an unfair dismissal because the employee was not aware of the alcohol and drugs policy and the policy was confusing.

The EAT agreed with the ET decision. It was incorrect for the employer to say that the employee was alleged to have been under the influence of alcohol and that this covered one alcoholic drink. The only conclusion to be drawn was that the employer had not applied its own policies nor did the employer itself know what those policies were.

What can employers learn from this case?

The employer must have clear policies, know what those policies are and make sure that employees know the policies so that they understand what standards of conduct are required of them. Any dismissals based on unclear standards of conduct or where the employee is not aware of the policies are likely to be found to be unfair.