Alcohol misuse during the Christmas period: case study

Phillip Chivers of Osborne Clarke concludes a series of articles on dealing with alcohol misuse during the Christmas period with a case study that looks at how employers should deal with a situation in which employees return to work after their lunch break under the influence of alcohol. Employers that have a clear policy on alcohol use will find dealing with alcohol misuse a great deal easier than those that fail to make clear their rules on alcohol consumption during working hours. 

Trifficfoods Ltd produces party food. Christmas is coming and the company is particularly busy. One day a group of employees who work in the customer services department decide to celebrate the festive season by going to the pub at lunchtime. They return to work within their allotted lunch break but have clearly consumed a number of alcoholic drinks and are in high spirits. During the afternoon one of the group, Sam, is found by Jenny, the customer services manager, asleep at his desk. How should Jenny deal with this situation?

The first thing that Jenny should do is to try to wake Sam. She should speak to him to try to establish whether or not he is under the influence of alcohol. He may admit that he has been drinking alcohol, or give other reasons for falling asleep. Jenny should make her own observations and consider whether or not he is exhibiting signs of having consumed alcohol (for example, his breath smells of alcohol and/or his speech is slurred). Having assessed the seriousness of the situation Jenny should send Sam home if necessary (and arrange transport if Sam is too inebriated to get home safely otherwise), and organise an investigatory meeting for the following day. After the investigatory meeting Trifficfoods should decide if it wants to institute disciplinary proceedings against Sam.

The company's position in relation to taking disciplinary action is strengthened if it has an alcohol policy that makes clear its stance on alcohol consumption during working hours and how it will deal with employees who attend work under the influence of alcohol. Its disciplinary procedure should make clear that attendance at work under the influence of alcohol is likely to result in disciplinary action.

Alcohol policies should also make clear what behaviour is, and is not, acceptable. This will vary between employers and working environments. Some employers specify in their policy that being under the influence of alcohol during working hours is gross misconduct.

If Trifficfoods' policy reflects a ban on alcohol use during working hours, and it applies its policy strictly, Sam will face dismissal. The employees who accompanied him to the pub and drank alcohol during their lunch break will also face dismissal. If they challenge their dismissal in an employment tribunal the tribunal will consider whether or not:

  • it was necessary for Trifficfoods to have a strict prohibition on alcohol use during working hours;
  • the policy was well-communicated and accessible to employees;
  • the policy was consistently applied in practice; and
  • the dismissals were reasonable in the circumstances.

If Jenny had known that the employees were heading to the pub and had said and done nothing to remind them of the policy beforehand, this would not work in Trifficfoods' favour. Matters would be even worse if she, or another manager or supervisor, had accompanied the group to the pub.

Many employers adopt an alcohol policy under which only serious incapability at work as a result of alcohol consumption will constitute gross misconduct. If Trifficfoods' policy follows this approach, or if there is no policy or guidance, it may need to take a more lenient approach to disciplinary action, despite the fact that Sam fell asleep. While an employee who fell asleep may be regarded by an employment tribunal as falling into the category of being seriously incapable of undertaking work, dismissal in these circumstances may be regarded as harsh and falling outside the range of reasonable responses, particularly in the context of the Christmas period. A more proportionate response may be for Trifficfoods to impose a disciplinary sanction short of dismissal. The appropriate level of disciplinary action would depend on various factors including the amount of alcohol Sam consumed and the impact of his incapacity on the business. In an office environment he is unlikely to pose a health and safety risk to himself or others. However, given that his role in customer services is likely to involve client contact, and the company is particularly busy at this time of year, his incapacity could have an impact on his and the company's performance.

Should Jenny take action against Sam's colleagues for consuming alcohol during their lunch break?

Sam was not the only employee who returned to work under the influence of alcohol. Some of his colleagues also appeared to have consumed alcohol. Whether or not it would be appropriate for Trifficfoods to take action against them depends on its policy, their level of intoxication and its effect on their performance. Depending on the numbers involved, taking disciplinary action against a group of employees may prove difficult. Given the potential impact on staff morale of disciplinary action, particularly in the context of the Christmas period, it may be more appropriate for Trifficfoods to issue a reminder to all employees of the employer's rules on alcohol consumption (see Alcohol misuse during the Christmas period: employers' checklist for examples of suitable wording).

What should Jenny do if Sam becomes aggressive or rude?

If Sam is aggressive or rude when he wakes up, this will constitute a disciplinary offence in its own right. This could result in the company considering a higher level of disciplinary sanction against Sam, including summary dismissal if his conduct amounts to gross misconduct.

Jenny may have to call the police if Sam becomes particularly aggressive, or refuses to go home.

After following its disciplinary process, Trifficfoods gives Sam a first written warning for incapability due to alcohol consumption during working hours. It issues a reminder to the other employees who went to the pub that if they drink alcohol during working hours they must do so responsibly and not in a way that will affect their performance.

Meanwhile, some of the employees working in Trifficfoods Ltd's factory hear on the grapevine that office workers have been going to the pub to celebrate Christmas. They decide that they would also like to celebrate the festive season. One day they go the pub at lunchtime and have a few alcoholic drinks. Later that afternoon, one of them, Liz, falls asleep at her workstation. Her supervisor, John, is very concerned because Liz operates a machine that cuts dough. He is also worried about how much alcohol the other employees may have drunk. He thinks that they should be dismissed for consuming alcohol during working hours.

Can Trifficfoods dismiss Liz and the other factory-based employees for consuming alcohol during working hours if it did not dismiss Sam or his colleagues?

Employers that operate in a factory environment, or in an environment that involves moving machinery or transport, are more likely expressly to prohibit employees from being under the influence of alcohol, or from consuming alcohol before or during working hours. The level of risk associated with alcohol consumption is greater in a factory than in an office. Employers have a duty under health and safety legislation to ensure the health, safety and welfare of their employees. An employer that allows an employee to work under the influence of alcohol, where this could create a risk to him- or herself or others, is likely to be in breach of that duty.

If there is a health and safety risk attached to allowing its employees to continue working, Trifficfoods may be left with no alternative but to send home all the employees who went to the pub. Whether or not it can take disciplinary action, including dismissal, against them for consuming alcohol during working hours, given that the office-based staff were treated more leniently, depends on a number of factors.

Trifficfoods would need to have a clearly communicated policy that makes clear that any degree of alcohol consumption, before or during working hours in the factory, will be treated as gross misconduct, and could result in dismissal. It must be able to justify this stance, which, given the environment, is unlikely to be difficult.

It will also need to be able to justify the difference in treatment between groups of staff. While some employers may have different types of workplace within their undertaking, differences in treatment across groups should be kept to a minimum to avoid allegations of unfair treatment and to limit the damage to morale.

Unless Trifficfoods has made clear in its alcohol policy and/or disciplinary procedure that the rules on alcohol consumption differ according to the working environment, with employees in the factory being subject to stricter rules than office workers, and can justify the difference in treatment, it may run the risk of successful unfair dismissal claims if it dismisses some employees and not others, for similar misconduct.

Trifficfoods will also need to consider whether or not it should dismiss Liz but impose a lesser sanction on her factory colleagues, given that she appeared to be more incapacitated than they did. Again, the wording of the policy should inform the company's actions. If the prohibition on alcohol consumption is absolute, the company will need to dismiss all employees who drank alcohol, rather than just Liz, to avoid allegations of inconsistent treatment. If the policy limits examples of gross misconduct to situations where an employee is seriously incapable of working as a result of alcohol consumption, the fact that Liz fell asleep, whereas her colleagues did not, may be sufficient to justify dismissing her but imposing a lesser sanction on them.

The next topic of the week article will be the first in a series on resignation and will be published on 12 January.

Phillip Chivers (phillip.chivers@osborneclarke.com) is a senior associate with the employment team at Osborne Clarke.

Further information on Osborne Clarke can be accessed at www.osborneclarke.com.