SMOKING OR DRINKING AND WORK - FOLLOW YOUR OWN PROCEDURE FOR A HEALTHY OUTCOME FOR THE BUSINESS

The issue:

Businesses want zero tolerance for smokers who break the smoke-free workplace law and risk criminal sanction for themselves and the business. Staff under the influence of alcohol or proscribed drugs during working hours are also unwanted since they bring risk to themselves and others.

But are dismissals for this behaviour always risk-free for businesses?

The consequences:

A decision by the Michelin Tyre company in Scotland to dismiss a long serving employee for a first breach of its workplace smoking ban was upheld by an Employment Tribunal as a fair dismissal. However, the dismissal by London Borough of Wandsworth of an employee found at work on a second occasion under the influence of alcohol was determined by an Employment Tribunal to be unfair.

Why this difference?

The danger to the rest of the workforce of smoking in a high fire risk factory employing 400 people combined with a clear policy prohibiting smoking were critical to the decision of the Tribunal in the Michelin case.

However, alcohol use policies tend to be more forgiving and provide for support and programmes to beat alcohol abuse. Where a policy offers support for alcohol misuse, the business must communicate the terms of that support and any detriment in terms of job retention of failure to accept that support.

Smoking at work is now a criminal offence but being drunk during working hours usually only deprives the business of the value of the employee and causes nuisance, unless the worker has responsibility for machinery or people which brings health and safety risk.

In each of these cases, having a procedure, communicating that procedure and, most critically, following the business’ own internal procedure as to the action to be taken in respect of an employee either smoking or under the influence of drink at work was found by the Employment Tribunal to be fundamental to their assessment of whether the business had made a fair dismissal.

The solution:

Prepare clear procedures with identified sanctions on these and on other behaviour a business wishes to regulate.
Communicate these procedures to all the workforce clearly and consistently.
When a problem arises, follow the business’ own procedure (as well as the statutory disciplinary and dismissal procedure).

These three steps will reduce the unfair dismissal claim risk greatly.

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