Veitch Penny LLP - Exeter | Crediton, Devon

Case

Sinclair v Wandsworth London Borough Council
Employment Appeal Tribunal - 4 September 2007

Issues

(1) Disciplinary procedure
(2) Consumption of alcohol
(3) Policies and procedures

Facts

Mr Sinclair was employed from 2001 to 2006 by the Council as a businesses support assistant in the technical services department. He had a clean disciplinary record. On 17 September 2006 he was seen drinking alcohol on duty. The matter was reported and Mr Sinclair had admitted he had been drinking. He told the investigator that he had a drink problem and believed himself to be an alcoholic. He was told that his drinking on duty was a serious matter but further action would be put on hold if he sought assistance from the Council’s occupational health service. Mr Sinclair refused this offer as he was of the view he would overcome the problem himself. He was told that he would need to co-operate with occupational health to keep his job. He then consented to the occupational health support. Mr Sinclair was issued with a final written warning reminding him of his obligation.

A month later Mr Sinclair was found again to be unfit to work because of alcohol consumption. He was suspended. During the investigation of this incident he claimed that any alcohol in his system was from the previous night. He said that he had been referred by occupational health for counselling but this was not the case.

A disciplinary hearing took place but ultimately he was found to have been unfit for work through the consumption of alcohol and, taking into account the final written warning which was already on his record, he was dismissed. His appeal was unsuccessful.

Mr Sinclair made a claim of unfair dismissal. At first instance, the Tribunal decided that dismissing Mr Sinclair was within the bound of reasonable responses because he had attended work under the influence of alcohol. However, there was an error in procedure because the Council’s alcohol policy had not been given to Mr Sinclair nor other relevant individuals although he was in clear breach of the Council’s disciplinary code. The Council had not made clear that Mr Sinclair could stop the disciplinary action by actively seeking treatment, as set out in the policy.

The Tribunal awarded Mr Sinclair just four weeks loss of earnings and made a further reduction in the award of 25% as he had contributed to his dismissal.

Mr Sinclair appealed against the reduction in his compensation to the Employment Appeal Tribunal (EAT). In turn, the Council appealed against the unfair dismissal finding and against the decision to limit the contributory fault reduction to 25%.

Decision

The EAT confirmed that the dismissal was unfair because of the procedural faults and that it was correct that the compensation should be limited to just four weeks’ loss as the panel was unconvinced that Mr Sinclair would have actively pursued treatment. The procedural faults were such that Mr Sinclair was unaware of the steps he could take. The EAT also confirmed it was appropriate to further reduce the award for contributory conduct. The EAT rejected the Tribunal’s view that alcoholism was an illness. The EAT stated that unacceptable conduct could not be excused by a background or underlying illness. The fact that Sinclair had already been found guilty of two serious disciplinary breaches and had misled his employer should not have been ignored.

Comments

This case reiterates yet again the importance of implementing internal procedures to communicate the employer’s policies and to ensure consistency in approach. Employers should train senior staff and management in the application of the policy.


Rachel Billen - Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.