Employment Law Snapshot
Welcome to Issue 2 of my Employment Law Snapshot. Thanks to everyone for their kind words about Issue 1 – I’m glad you enjoyed it.
For those readers who provided some so-called ‘constructive’ feedback on the videocast, which included suggestions about ensuring that the lighting didn’t bounce off my forehead as much and recommendations for the best brand of make-up to wear…. I will see you in court!!
If you haven’t witnessed my public, video-based embarrassment yet, feel free to follow watch our video version of the Employment Law Snapshot below. I’ve disabled the comments, so you’ll have to email me directly with your mockery – it will be much easier to add you to the writ as well…..
Anyway, on with the law.
The Legal Stuff
This week’s case is called McElroy v Cambridgeshire Community Services NHS Trust. In this case, Mr McElroy was employed as a healthcare assistant. After he turned up for work one day, his line manager was told that he smelled of alcohol. The line manager spoke to Mr McElroy and he said that he had drunk a couple of beers the night before. A more senior manager decided to suspend Mr McElroy and he was referred to the Trust’s Occupational Health department.
At this point, it’s important to note what the contents of the Trust’s disciplinary policy and substance misuse policy were. The disciplinary policy said that being unfit for duty because of drink was an example of gross misconduct. The substance misuse policy said that being unfit through drink meant being incapable of functioning effectively at work. Importantly, the substance misuse policy didn’t ban drinking alcohol shortly before coming to work but it did recommend that employees avoided it.
The disciplinary investigation report said that managers had expressed concern about smelling alcohol on Mr McElroy on a number of previous occasions. Mr McElroy denied coming to work drunk. He suggested that people were smelling his aftershave. Importantly, the investigation report also said that nobody had voiced any concerns about Mr McElroy’s behaviour or that he had been acting drunk. Nevertheless, Mr McElroy was told that he had to attend a disciplinary hearing to consider the allegation that he had come to work under the influence of alcohol and that this had led to a breakdown in trust and confidence in his ability to carry out his role.
The Trust was provided with an occupational health report which had been based on information provided by Mr McElroy about his alcohol consumption. By the time the report was received, there was some uncertainty in the mind of the disciplinary officer. This was because Mr McElroy had given inconsistent explanations for the possible causes of the smell, including aftershave, garlic and hospital alcohol gel. In addition, the disciplinary officer had become aware that Mr McElroy had been admitted to hospital with an illness which she knew could be associated with excess alcohol consumption. As a result of this uncertainty, Mr McElroy was asked to attend another occupational health appointment, but he refused.
Eventually, Mr McElroy was summarily dismissed for gross misconduct. Although the letter dismissing him referred to the original disciplinary allegation of coming to work under the influence of alcohol, it also referred to the fact that he had failed to follow a reasonable management instruction when he was asked to go to the second occupational health appointment.
Mr McElroy brought an unfair dismissal claim.
The Employment Tribunal decided that he had been unfairly dismissed.
As part of the decision, the Employment Tribunal said that it was reasonable for the Trust to find that Mr McElroy had come to work smelling of alcohol, based on the evidence that it had to consider. The Tribunal said that it was also reasonable that the Trust had wanted Mr McElroy to go to another occupational health appointment and for the Trust to find that his refusal was unreasonable.
However, the reason why the dismissal was unfair was because the Tribunal said that a reasonable employer would not have concluded that Mr McElroy was unfit for duty, because there was no evidence that he had been incapable of functioning effectively at work. The Tribunal focussed on the strict wording of the Trust’s two polices, which essentially said that an employee had to be incapable of functioning effectively at work due to alcohol and there was no evidence to support this. The other mistake made by the Trust was the fact that the reason given for his dismissal also included his refusal to attend the second occupational health appointment.
However, the refusal had not occurred when the disciplinary process started and therefore Mr McElroy hadn’t had this allegation formally put to him before the disciplinary hearing. In addition, the substance misuse policy said that a refusal to attend an occupational health appointment would not normally be a ground for disciplinary action. Therefore, the Tribunal decided that a reasonable employer would not have found an employee guilty of this sort of allegation when it had not been properly drawn to his attention during the disciplinary process.
So, the moral of the story is that employers must make sure that they look at their relevant policies closely when carrying out a disciplinary process to make sure that the allegations against an employee are accurate and sit comfortably with the wording of the policies. Finally, when any new potential allegations arise during the disciplinary process itself, it’s important that they are drawn to the employee’s attention properly and before any disciplinary decision is taken.
And Finally…
This week, I have become increasingly aware of the incursion of robots and artificial intelligence into the world of employment.
Firstly, a hotel in Japan is reportedly going to be partially staffed by human-like robots! The hotel is due to open in a few weeks and apparently, there will be three uniformed receptionist robots, a handful of porter robots and cleaning robots. Having looked at a couple of photographs on that new-fangled interweb, the robots are incredibly lifelike. According to various reports, the hotel will also be staffed by some human beings, which is nice.
To make matters worse, if you are worried that your job might soon be replaced by a robot or some other science fiction based entity, why not have a look at the following website which predicts the likelihood of your job being done by a machine in the future!!
You will no doubt be delighted to hear that lawyers only have a 3.5% chance of becoming automated in the future. I can hear the cheers from here.
When I told the current Mrs Tibble the good news, she said it was a shame – bearing in mind “that I could already pass myself off as a robot with my shiny C3PO forehead…….” Harsh, but true.
Until next time.
Darren
