Veitch Penny LLP - Exeter | Crediton, Devon

Case

Sandsfield Gravel Co Ltd v Loving
Employment Appeal Tribunal – 28 April 2009

Issues

(1) Gross misconduct
(2) Disciplinary proceedings
(3) Statutory disciplinary procedure (repealed 1 April 2009)

Facts

Mrs Loving was employed by the Respondent as a Park Manager at the Dacre Lakeside Caravan Park managing the park and bar. As part of her duties she was required to travel around the site in a company vehicle managing the pitches and facilities. There was a term in her contract of employment indicating that drinking alcohol on duty was prohibited and could be viewed as gross misconduct.

In 2007 Mrs Loving was subjected to a disciplinary procedure following a number of allegations being made against her including some contained in an anonymous letter. Whilst there had been concerns about her conduct prior to this time, they had not been acted upon by the employer. One of the allegations was she had been seen driving to her office whilst holding a glass of low alcohol wine out of the window of the vehicle. It also made allegations that she had used abusive language and showed lack of consideration towards certain customers.

Mrs Loving said that she had been offered a drink, and because she was needed in reception, she drove back to the reception office. She admitted holding the glass. The employer undertook further investigations but no one wished to give evidence. No notes of these meetings were given to the Claimant. She was subsequently dismissed for drinking whilst at work and driving a company vehicle whilst in possession of alcohol.

The Employment Tribunal held that this dismissal would be automatically unfair due to breaches of the statutory disciplinary procedure. She had not been given sufficient detail of the allegations as required by the statutory disciplinary procedure. The employer had then argued that she was likely to have been dismissed in any event despite the alleged failings in the dismissal procedure. The Tribunal disagreed with this view. It did not believe that she would have been dismissed despite the procedural failings as in its view the offence was so minor that dismissal was not justified.

The employer appealed the case to the Employment Appeal Tribunal (EAT) on both points.

Decision

In respect of the finding that the dismissal was automatically unfair, the employer’s appeal was unsuccessful. It found that the Respondent had not sufficiently informed Mrs Loving of the allegations against her in breach of the statutory dismissal procedure.

With regard to the Tribunal’s finding that she would not have been dismissed after a fair procedure and that she had not contributed to her own dismissal, the EAT concluded that the Tribunal had substituted its own decision for that of the Tribunal and had been perverse.

It noted that the Respondent had a zero tolerance attitude to alcohol and on this basis dismissal was at least a potential outcome. It therefore allowed the second part of the appeal and remitted the case to a differently constituted Employment Tribunal.

Comments

This decision highlights the importance of properly drafted and properly implemented disciplinary rules. The employer had made it explicitly clear that it had a zero tolerance attitude to alcohol, which justified its disciplinary action.