Drunk and disorderly

Sinclair v Wandsworth Council

The case of Sinclair v Wandsworth Council (IDS 843) contains a salutary tale for employers who fail to implement their own policies. The Employment Appeal Tribunal (EAT) said that the council’s decision to dismiss an employee was unfair because it had failed to apply its alcohol policy.

Basic facts

Mr Sinclair, a Business Support Assistant, had an unblemished work record until 17 January 2006 when he was seen drinking at work. He admitted that he had a drink problem, and agreed to a referral to the Occupational Health Services (OHS) doctor on the understanding that the disciplinary action would be put on hold.

He duly saw the OHS doctor in early February who advised him to seek specialist help but Mr Sinclair said he would stop drinking himself. He agreed to allow OHS to contact his GP, after it was made clear to him that he would have to co-operate with OHS if he was to keep his job. He was given a final written warning at a disciplinary hearing on 31 March 2006.

A few weeks later, Mr Sinclair was found to be unfit for work because of drink and was suspended. A further disciplinary hearing was held on 26 May at which he was dismissed. His appeal against dismissal, held in September after a thorough review of events by the Council, was unsuccessful.

Tribunal decision

The tribunal said that, in considering whether a dismissal had been fair or not, it had to consider “whether an employer has complied with its own internal policies and procedures. A failure to follow those procedures may make a dismissal unfair, on the basis that any reasonable employer will generally adhere to its own published procedures."

The tribunal accepted that the reason for dismissal was Mr Sinclair’s conduct, a potentially fair reason under section 98(2) of the Employment Rights Act 1996. It also agreed that the Council had carried out a full and reasonable investigation.

However, a majority of the tribunal found the dismissal was unfair for two reasons. Firstly, the Council did not give Mr Sinclair a copy of the policy until just before the hearing in May and secondly, it did not make clear to him that disciplinary action would go ahead if he did not actively seek treatment for his problem.

The tribunal then concluded that even if the Council had acted fairly and taken its own policy into account, Mr Sinclair would still have been dismissed. It therefore limited his compensatory award to four weeks’ pay, and reduced the basic and compensatory awards by 25 per cent on the basis that Mr Sinclair’s failure to seek treatment contributed to his own downfall.

The Council appealed, arguing that it had a discretion about whether to proceed with disciplinary action under the alcohol policy. It also said that any deficiencies in the disciplinary hearing were resolved at the appeal. Mr Sinclair appealed against the reduction in his award.

EAT decision

The EAT, however, did not agree with the Council. “It said that the tribunal was engaged in answering precisely the right legal question … They were asking themselves whether these matters in relation to the Alcohol Policy undermined the fairness of the dismissal by virtue of the fact that no reasonable employer would ordinarily depart from its own published procedures.” As long as their approach was correct in law and they did not take “irrelevant considerations” into account, the EAT said it would not overturn the tribunal’s decision.

Although the EAT accepted that, in principle, an appeal can “cure” earlier deficiencies, it said that the Council had failed to do so in this case. This was because the appeal officer had not addressed the two issues raised by the tribunal - that Mr Sinclair had not had the alcohol policy in good time; and that it was not made clear to him what he had to do to for disciplinary action to be suspended.

In relation to Mr Sinclair’s appeal, the EAT agreed with the tribunal’s assessment for compensation, but held that the tribunal had made an error of law in finding that actions arising from alcoholism could not amount to contributory conduct and ordered that the contributory fault percentage be reassessed.