+Scott Watson

Friday, 8 April 2011

‘Confusing’ policies led to unfair dismissal - A lesson in clarity?

Liberty Living plc v Reid


An employee summarily dismissed for drinking alcohol off work premises during working hours was unfairly dismissed. His employer’s policies (one dealing with alcohol and drugs and the other with disciplinary issues) were inconsistent and had only been drawn to the employee’s attention after his dismissal.

Liberty Living (LL) owned and managed various student properties where Mr Reid worked as a maintenance caretaker. LL had two employment policies which related to alcohol consumption during working hours. The Disciplinary Policy referred to the possibility of summary dismissal if the employee is found to be ‘under the influence of alcohol’ during working hours, which amounted to gross misconduct. Its Alcohol and Drug Policy stated that ‘consumption of alcohol or being under the influence of alcohol while performing company business or in the workplace is prohibited’ and that ‘violation of this policy can result in disciplinary action up to an including discharge’.

Mr Reid was caught by LL’s general manager drinking in a local pub during working hours. He was given a letter summoning him to a disciplinary hearing for ‘being under the influence of alcohol during working hours’. A copy of LL’s Disciplinary Policy was enclosed with the letter but its Alcohol and Drugs Policy was not. At the end of the hearing Mr Reid was told he was being summarily dismissed, the reason given being that consumption of any alcohol at all during the working day constituted gross misconduct. A subsequent dismissal letter then stipulated that he was dismissed both for having had an alcoholic drink during working hours and for being under the influence of alcohol during working hours. Mr Reid appealed on the basis that he’d only had a pint of lager shandy and that he had not been ‘under the influence’. His appeal was dismissed because he had consumed alcohol during working hours.

By a majority, a tribunal upheld Mr Reid’s unfair dismissal complaint because he’d been unaware of LL’s Alcohol and Drugs Policy and the policy was, in any event, confusing. LL was patently unclear as to what its policies actually were and had created confusion at the disciplinary hearing by referring to both a prohibition on being ‘under the influence of alcohol’ and against any ‘consumption of alcohol’. LL appealed on the grounds that the tribunal’s decision was perverse and that it had substituted its own view for that of a reasonable employer.

The EAT rejected LL’s appeal and upheld the finding of unfair dismissal. It was not open to LL to say that, although it had charged Mr Reid with being under the influence of alcohol, that covered a situation where he had had a single alcoholic drink. Not only did LL not apply its own policies but it clearly didn’t know what they were. The Disciplinary Policy said that it was only being ‘under the influence’ during working hours that could be categorised as gross misconduct leading to summary dismissal. And while the Alcohol and Drugs Policy stated that consuming alcohol while on company business or in the workplace was not allowed, it was not expressly designated as gross misconduct. LL’s cause was not helped by the charges it brought against Mr Reid being different from what he was actually dismissed for.

Here are some suggestions as to what HR can learn from this case:

-Have policies which are consistent and not contradictory.

-Avoid phrases such as ‘under the influence of alcohol’; it’s pretty meaningless unless you are going to spell out precisely what it means.

-Make sure policies are brought to the attention of staff, e.g. get them to sign and date that they have received, read and understood them.

-Make sure your managers know what your policies say – in the case above the dismissing manager wrongly told Mr Reid that because he had had a drink during working hours, this was gross misconduct; neither policy actually said this!

Liberty Living plc v Reid

Republished with the kind permission of Craig Gordon, HR Bullets

No comments:

Post a Comment