"Not very" - according to Guernsey's Employment Tribunal in a recent decision; it is tantamount to gross misconduct and a fair reason to dismiss, providing an employer adopts a fair procedure (the Tribunal hastened to add).
On 26 July 2011, Mrs L, employed as a social worker in the Health and Social Services Department of the States of Guernsey, called a meeting with her Team Manager to confess to an alcohol problem. She admitted to drinking heavily and 'being under the influence' on various occasions whilst at work. Mrs L called the meeting to openly acknowledge her problem and to seek help and support from her employer in overcoming alcoholism.
Being a reasonable employer, the States were supportive and agreed to provide her with help which included making a referral to the in-house Occupational Health Team some two months later.
On 12 October 2011, Mrs L was due to attend a work-related training course at Guernsey's police station. Rather foolishly, Mrs L arrived at the course whilst under the influence of alcohol. Unsurprisingly, with the police already being 'on-hand', she was immediately arrested for drink-driving and charged. Upon learning of Mrs L's fate, the States chose to meet with her whilst in police custody during which she was suspended from duties with immediate effect.
The following day, Mrs L appeared before Guernsey's Magistrate Court and was convicted of driving whilst under the influence of alcohol, fined and her driving licence suspended for over two years. On the same day, the States wrote to Mrs L confirming its decision to suspend her employment pending a thorough investigation (in accordance with the States' Disciplinary Procedures) and offered to provide her with additional guidance from a counselling service; she refused this offer.
As part of the investigation, two of the Department's managers were tasked with reviewing the circumstances surrounding the October 2011 incident, both being independent from the initial 'confession' meeting the previous July.
The investigators wrote to Mrs L inviting her to attend a meeting at a set date and time (three days hence); she was also informed of her right to be accompanied at this meeting by a workplace colleague, the purpose of which was to ascertain the reasons for her behaviour. Two further meetings were subsequently convened and on each occasion Mrs L was given the opportunity to speak openly.
Upon conclusion of the investigation, Mrs L was invited by letter to attend a disciplinary hearing (seven days hence) to discuss the investigators' findings. She was informed of her right to be accompanied by a workplace colleague and provided with a copy of the States' Disciplinary Procedures to review. She attended the meeting accompanied by a fellow social worker.
The investigation concluded that her attendance at a training course during her normal working hours (albeit not on work premises) was during the course of her employment with the States and that her behaviour fell nothing short of gross misconduct. On that basis, it was recommended that she be dismissed. The States agreed with the recommendations and summarily dismissed Mrs L by way of a termination letter five days later.
Mrs L was informed of her right to appeal the decision within five working days but she chose not to exercise this right. Instead, she issued a claim against the States alleging that she had been dismissed unfairly.
She argued that the States had failed to provide her with sufficient support following the initial disclosure of her alcohol dependency and, in particular, had delayed in her referral to Occupational Health. It was her opinion that if the States had provided the level of support necessary to help her overcome the alcohol problem at an earlier stage, then the incident on 12 October 2011 may have been avoided!
Not so, held the Tribunal.
Whilst it was unfortunate that the referral to Occupational Health took two months, the fact remains that in any employment relationship there is a joint responsibility of care; Mrs L had ample opportunity to personally pursue the States offer of support, or seek support of her own volition. Whether or not she would have committed the act of gross misconduct if she had received the promised States support is purely a matter of conjecture.
Applying the relevant sections of the law, the Tribunal referred to a number of factors including the impact of Mrs L's inability to drive (due to the loss of licence), reputational harm to the States and the possible likelihood of her having to appear (in a professional capacity) before the very Court that convicted her of drink-driving. These were genuine issues relating to her conduct and prevented her from performing her duties to a satisfactory standard; the States had a fair reason to terminate her employment.
On hearing that the reasons for her dismissal were 'fair', Mrs L then sought to argue that the States had failed to adopt a fair procedure in dismissing her, claiming that she had at no time been explicitly advised that her actions on 12 October 2011 may be categorised as gross misconduct; for that reason the States had failed to inform her that the ultimate disciplinary sanction was dismissal.
The Tribunal was not prepared to entertain this argument; it ruled that Mrs L, whilst somewhat foolish, was in fact an intelligent, professional person and would have reasonably understood the seriousness of her actions and the potential consequences for her role. The Tribunal accepted that although the States failed to maintain a detailed set of file notes, this procedural failing was minor in nature and did not detract from the overall fairness of the investigatory and disciplinary procedure adopted.
This decision is relevant for any employer. It emphasises the importance of having a clear disciplinary policy; this ensures a fair procedure is adopted when tackling, amongst other things, conduct issues and is something that a Tribunal will hold in high regard when hearing dismissal claims. A Tribunal does not look favourably upon those employers that have no such policy. Therefore, if you need help drafting a disciplinary policy, or would like to discuss any employment related issues, please give our employment team a call.
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