Employee Law - employee drinking vodka at work!!

[BrassicaBabe]

Hi

We've been informed via a reliable source that one of our employees was drinking at work yesterday. Although we didn't smell/notice anything.

This would be considered gross misconduct and we would sack him. (Following disciplinary, grievence and appeal procedures etc) He would be a serious H&S risk to himself and others around him (farm worker using heavy machinery etc).

How do we get the proof to act? (How can we not?! We have a duty of care to him, other employees and the general public! Feel stuck between a rock and a hard place - have responsibilities to others, but a responsibility to be fair to him.)

It is possible he has alcohol on his person or in his posession. Can we search him? Can we search his bags that are in our vehicles?

Is finding the alcohol proof enough?

We don't have a specific drugs/alcohol policy

Any advice/links would be gratefully received!

Many thanks

[mumoverseas]

not an employment lawyer but would have thought you need a little more than hearsay evidence. What would finding a bottle of alcohol in his car prove?

[BrassicaBabe]

Boy, employment matters suck the life out of me Even matters that I belive are black/white turn out to be various shades of grey!

I'd agree that a bottle of vodka in the back of his car wouldn't be a problem. But a partially drunk bottle on his person or in his duffle bag that he takes to site with his lunch in it might lead to the conculsion that he's actually drinking it?

I've been doing some digging.

Brain dump of stuff I've learned:
It seems that we can't search him unless we have a specific policy allowing it - we don't.
Not having a specific drugs/alcohol policy seems to leave us impotent.
Alcohol isn't illegal so drinking at work might actually not be considered a problem in some eyes
As you say, evidence on the grape vine isn't helpful (although I absoltuely believe it based on how we found out)
If he hurts himself or someone else at work because of alcohol then we could be proscecuted.

But, if we can't find/search for alcohol and even if we do find it we can't prove he's been drinking there is little we can do!

Assuming we can't search him or that finding half empty bottles doesn't prove anything then I don't know what action I'm supposed to take.

I feel the need to say, we like this guy, but drinking at work, in this industry really cannot be tolerated

If I wasn't pregnant I'd be off for a snifter myself at the point

[mranchovy]

It is true that you would be better off with a D&A policy, but you are not lost without it.

Does the contract of employment state that drinking or being drunk on duty are grounds for summary dismissal? Again if not it is not a disaster, but it would help.

You don't need to have incontrovertible proof, you are not a criminal court, so you don't need to search him or his posessions. It is correct that unless it says otherwise in the contract or relevant policy you do not have the right to do this, but there is nothing to stop you asking him if you can. If he refuses it doesn't mean anything, but if he agrees and you find alcohol then that is evidence.

In order to dismiss him for gross misconduct, you need to be resonably certain that he has been drinking or is drunk on duty. And in order to defend a claim for wrongful and/or unfair dismissal, you need to be able to justify to an employment tribunal why you were reasonably certain, but you do not have to prove whether or not he was in fact drinking or drunk. You also need to ensure that you have gone through a process allowing him to give his version of events in case there is an alternative explanation for the evidence. If you do not have a disciplinary and grievance process, get hold of one and follow it.

You could try talking to ACAS, but their advice can be a bit inconsistent. Otherwise, try a lawyer or HR consultant (there is at least one good one on here, try the Employment Issues forum.

[mranchovy]

Just two other points:

An employment tribunal would take into account all the circumstances when considering if summary dismassal is fair, including custom and practice appropriate to the industry and job. If he is operating machinery, zero tolerance is universal.

If he is an alcoholic and discloses the fact to you, take legal advice.

[BrassicaBabe]

Thanks!

We have no mention of drinking in our contract, but we do have a disciplinary and grievence procdure.

At this stage then I think my plan is to have a talk to him monday morning - ask him if he's been drinking or has alcohol on him. Ask him to show us his bag to prove he does/does not have alcohol on him. (I would suggest that having a bottle of vodka in your bag at 7am isn't a sign that you've been shopping early in the morning and more a sign that you intend to drink it! )

If yes to either, send him home in a cap (paid for by us) inform him that he's suspended, take a written statement from the contractor who saw him drinking, follow discipinary procedure and dismiss him.

If no to either, inform him that drinking at work is unacceptable and will lead to dismissal, ask him if everything is okay, whether he is happy at work, whether recent additional responsbilities given to him are too much and leave it at that. Making the relevent notes in his file etc. (At least proof that we've not sat on our backsides if something dangerous does happen)

Further action - get a D&A policy! Add a statement to the contracts (have provision for updating contracts as needed/reasonable) about zero tolerance to alcohol!

Cheers! I feel a bit better now!

[flowery]

So you only intend to discipline him if he owns up to it on Monday morning or has drink in his bag at that point?

If you have a witness statement from someone who saw him drinking at work and don't at the very least suspend and investigate and then probably dismiss him, you could then be in some serious trouble if he drinks at work again and injures himself/someone else as a result. The colleague would be able to say he saw this guy drinking and brought it to your attention but you failed to act.

If it's fundamental to his job that he doesn't drink at work and he has been seen drinking, you need to act on that, not just have a chat with him.

[mranchovy]

Yes, perhaps what I said below could equally well be turned round to "In order not to dismiss him for gross misconduct, you need to be resonably certain that he has not been drinking or is drunk on duty (where there is credible evidence to the contrary)." Unfortunately your responsibilities on the one hand to him as an employee and on the other hand to other employees and the public mean you can't sit on the fence on this one.

[mranchovy]

Hmm, don't like what I said there. Try again...

Yes, perhaps what I said below could equally well be turned round to "In order not to dismiss him for gross misconduct, you need to be resonably certain that he has not been drinking or is drunk on duty (where there is credible evidence to the contrary)." Unfortunately your responsibilities on the one hand to treat him fairly as an employee and on the other hand your duty of care to him, other employees and the public mean you can't sit on the fence on this one.

[nocake]

So far you don't have a written statement from anyone saying that he's been drinking, just rumour and hearsay. I suggest you correct that before you talk to him as a decent employment solicitor will haul you over the coals if you take any formal action against him without evidence.

If you don't get written evidence then you can (and probably should) talk to him informally and off the record. If you do get written evidence then you can follow your disciplinary process.

[BrassicaBabe]

Thanks guys. Good points all round. I already feel bad for the poor temp labourer (called gang worker round here and in this industry, but conjours up the wrong image if you aren't familiar ) who saw this chap drinking The witness while a gang worker has worked with the "drunk" chap for several years. He mentioned it to his co-ordinator in confidence, who mentioned it to the gang master who called us.

We would like to have a clear picture, first hand, before Monday morning. So we're going to see if gang worker will see us sometime tomorrow. (He's worked for us in a temp capacity on an off for several years.) Otherwise we'll have to pull him to one side on Monday before talking to the "drinker" and we don't want to make it too obvious. We'll explain to him that we're worried about the drinker and the gang worker himself and his colleagues and that we have to act in the best interests of all and that we will do our very best to ensure he isn't dragged into it or named specifically.

Are we at risk of taking one persons word above the other?

We'll ask what he saw and how long it's been going on for. I guess there's a chance this isn't a one off and it's taken him a while to pluck up the courage to mention it to anyone.

Assuming he's willing to give us a clear verbal first hand statement that I can then write up we should be in a clear plan of action. If he's not able/willing, then I'll revert to my informal chat plan as mentioned in earlier post.

So my new plan:
Visit gang worker to get a statment
Confront "drinker" on Monday morning, ask him the questions as setup in previous post, but suspend him anyway.
Consult solicitor in the week while he's suspended for final advice before dismissing him

(I've been working with a solicitor for the last week for help putting together new contracts and procedures.)

It's all a bit sad really. We've just given him a payrise because he's been such a reliable and decent employee. Of the 3 permenant employees he's been far and away the best. It's been the other two that have driven me to dealing with solicitors!! What bad luck is that?! In fact there's a chance that because the other 2 have been problematic that this chap is feeling the stress (plus his wife has been poorly). But really you can't drink vodka and drive a fecking tractor!!

Thanks for holding my hand through these long posts!!

[BrassicaBabe]

In fact, I'll make up/download some form of witness statment form that I can fill in while the witness is talking and ask him to sign it before we leave. This will save scribbled notes and a delay while I type it up and ask for him to sign it.

[fortyplus]

Is it possible that this is the wake-up call he needs to kick the habit? If he's an otherwise excellent employee wouldn't you want to help him?

Just supposing the person who informed you he'd been drinking had a grudge against him and was making a false accusation?

I don't think this should be as black & white as it seems, though I agree that you can't possibly risk him being drunk in charge of machinery.

I have a good friend who was an alcoholic and received a 3 year driving ban but managed to give up.

[BrassicaBabe]

Yep, all possibilities I'm afraid.

Once we have a witness statement from the gang worker, we can suspend the drinker and then use the week ahead to take futher statements from the 2 other gang workers (non english speaking just to complicate matters!!) who we don't know.

Yes we want to help him, but being a small family business with now 3 for 3 poor performing employees we're r-e-a-l-l-y struggling! At some point we've got to put good intentions to one side and get on with the business in hand otherwise there won't be a business at all.

We've got ourselves into this mess over the last 2 years because we've been too compassionate for too long. How sad it that.

No pressure, but I'm 35 weeks pregnant with twins and need to get this sorted before I pop. Which could be anyday now!

[BrassicaBabe]

Right, things are a little clearer. I now have a first hand witness statement about this guys drinking.

Apparently it's been a problem for about 3 months. He comes to work drunk having been drinking in the evening/night. We don't notice the slurring because his English is poor, but in his native language they notice the effects all day. Other workers have seen him drink during working hours once, but suspect it goes on alot more because of the all day effects. This statement was from one gentlman.

So we're going to suspend him on full pay tomorrow. Then meet with 2 others who can provide additional informaiton and/or backup what we already know.

Then we're going to dismiss him.

I think we'd like to work with him to sort this, but this really must be zero tolerance. I don't think we've got the skills or the means to work this through on a long term basis and if we don't strike while the iron is hot we could be opening ourselves to more problems/pain in the future.

Thanks for all of your help and advice.

[VivaLeBeaver]

Could you not give him a final warning and then sack him if it continues. Just hate to think of someone losing their job. Am prob too soft I know.

[mranchovy]

Just hate to think of someone losing their job.

You would rather think of someone losing their life because an intoxicated employee reversed a tractor into them?

That's not soft, that's negligent.

[flowery]

Most employers would class being under the influence of alcohol/drinking at work to be a gross misconduct offence, however the reality is in some jobs/workplaces it's more important than others.

Where the person has otherwise excellent record, their work isn't being affected adversely and there is no chance of anyone coming to harm as a result, then perhaps a final warning then very strict supervision while working with the person to help them might be an option for a supportive employer.

But in these circumstances there really is no room for any tolerance, there is a duty of care to both this employee and everyone else which has to come first.

[VivaLeBeaver]

I used to work with someone who was still pissed every morning. He never drank at work but would drink till 2:00am every night and we'd start work at 8. We did a manual labouring job which involved machinery and driving on public roads.

It was my boss who realised he was pissed every morning, I was oblivious.

They confronted him and he said he was an alcoholic, apparently then they couldn't sack him as alcoholism is an illness like any other. He was suspended and allowed time to seek help which he did. Came back sober.

[mranchovy]

they couldn't sack him as alcoholism is an illness like any other

It's a bit more complicated than that because alcoholism itself is specifically excluded within the DDA - see Sinclair v Wandsworth Council et al

[flowery]

Perfectly legal to sack someone who is ill. If their actions constitute gross misconduct particularly in an environment where there are significant risks to keeping them at work, then the fact that those actions may be caused by an illness doesn't preclude the employer from sacking them.