From a glass of fizz at a leaving do to liquid lunches on Fridays, there are plenty of occasions to have a drink with colleagues. But alcohol and work can be a tricky mix. As the Christmas approaches, David Whincup, partner at Squire Patton Boggs takes a look at what employers need to know…
Williams, Turner and Stoker -v- the Whitbread Beer Company back in 1995 is the sad story of an employer trying to do something nice for its staff and being roundly punished for it.
Whitbreads ran a staff seminar and laid on a free bar afterwards. As the evening wore on our three heroes became increasingly lairy. Turner poured beer over Stoker and Stoker punched Turner, Williams finally and gloriously telling the manager who had asked him not to swear to “f*** off”. When they were summoned before management the next morning all were rampantly unapologetic and were consequently dismissed. Surprisingly their unfair dismissal claims were all upheld, in part because by providing the free bar, Whitbreads had effectively brought it upon themselves. Dismissal in those circumstances was outside the range of reasonable responses, said the Employment Tribunal, a conclusion left undisturbed on appeal.
That seems harsh on Whitbreads, but the decision is actually better known for two subsidiary points – first, that it is the first judicial proof of what it is actually possible to organise in a brewery, and second, that the seminar was on improving behavioural skills. Hey ho, back to L&D with that one, I suspect.
That was 1995. Would we now get the same outcome again or would these more PC days discount the role played by alcohol or the employer’s provision of it? This can be a vexed area for employers torn between treating drunken behaviour in the workplace as misconduct on the one hand or the trigger for some sort of counselling intervention on the other. If your employee over-indulges at the Christmas party and does something horrendous as a result, which way do you go? A number of factors may help guide you:
If the employee has a tendency towards that sort of thing, he may well (whether he admits it or not) have a dependency issue. That would suggest that although he could certainly be robustly reminded of his error in a disciplinary context, a decision not to dismiss him could be made conditional on his agreeing to undertake some addiction treatment. But fall off the wagon in such style again and he would be dismissed, and the same if he refused to acknowledge the existence of an issue and therefore to attend or heed any counselling.
Context is important but not determinative. If the work environment is heavily safety-regulated, for example, for pilots, oil-rig workers or others who may pose a particular risk to public safety if under the influence, then the employer can with good cause be much less tolerant, especially where it has made its alcohol policies very clear to its staff.
If there is any suggestion that the employer knew the employee was drunk but kept topping him up all the same, it may well be both in breach of its duties to him if he is injured as a result and also liable for any harm he does to others. There should always be someone at a company function with the authority to tell an employee that he has had enough. In Whitbread, no-one did that until too late.
Alcohol addiction itself is not a disability, though medical conditions arising from it certainly can be. An ET may smile upon an employer which dismissed only after trying to get the employee “clean”, but that does not mean that the employer must necessarily do so as a pre-condition to a fair dismissal. If the alcohol-fuelled misconduct was something which would ordinarily warrant dismissal, the employer would be justifiably reluctant to give other employees the impression that you can still get away with it if suitably plastered at the time. There is no automatic legal obligation, whether under the Equality Act or otherwise, to make any form of “reasonable adjustment” for alcohol-related misconduct.
However, that does not mean that the alcohol context is completely irrelevant. Subject to (iii), it would be surprising these days if the question of who provided the alcohol were seen as very material by the Tribunal. Against that, the ET might expect some visible consideration of leniency if the employer knew that the behaviour was an unforeseen side-effect of mixing the employee’s one dry sherry with some prescribed drugs or that the employee’s one-off binge was the result of a recent divorce or bereavement.
Where you do operate a support scheme, certain conditions should attach to this, in particular the employee’s accepting the necessity for it and his undertaking treatment in line with it. The very best practice is said to be to factor in provision for one relapse without that triggering further action, but that is obviously heavily dependent on context and in no sense a legal obligation.
Last, while you might think it should not be necessary to tell an employee expressly that being alcohol-impaired at work is inappropriate, whether the employer has taken that basic step remains a key part in the Tribunal’s considerations, especially where the alcohol rules are much stricter (for example on religious or safety grounds) than the employee might otherwise expect.