THE DRINKING EMPLOYEE

by Jonathan Goodliffe, Solicitor

 

Published in the April 1991 Charities Supplement of the New Law Journal

 

Alcohol in the Workplace

Drinking is a serious problem in industry and commerce. A person who is under the influence of drink cannot perform his job and people may be affected by drink in less obvious ways. Alcohol is a depressant drug. Drinking affects physical performance, speed of responses, concentration and judgment. A person who is abusing alcohol loses the ability to experience emotions and to communicate effectively and assertively with other people. This often leads to isolation and aggressive behaviour.

Alcohol abuse leads to physical or mental ill health or both. Physical effects include cirrhosis of the liver, cardiomyopathy, various cancers, anaemia, impotence, peptic ulcer and hepatitis, as well as the alcoholic withdrawal syndrome.

Alcohol abuse also frequently leads to depression (and/or aggravates a pre-existing depressive tendency) and blackouts. In alcoholic blackout a person may seem in possession of his faculties but subsequently has no recollection of his actions which may often involve the commission of crimes. Other mental symptoms include dementia, pathological jealousy, feelings of persecution and hallucinations.

Not only the performance of the drinking employee but also that of his colleagues, and especially those to whom he is superior in rank, is affected. Employers in industry wish to prevent an atmosphere arising at their workplace or office where heavy drinking is seen as acceptable. This can be difficult to achieve. Drinking during working hours may be banned but should this apply to the board room as well as the shop floor and how is the ban to be policed without causing ill feelings? What of the employee suffering from a hangover or who manages to be permanently "topped up" without drinking at work or appearing to be drunk? In some occupations, drinking during office hours may sometimes be considered to serve a commercial purpose. Where and how does one draw the line?

 

Dismissal for Drunkenness at Work

Many of the cases in the Employment Appeal Tribunal in which the issue of alcohol abuse has arisen relate to a specific incident of drinking and raise the question whether the employer was justified in treating that incident as a ground for instant dismissal. In Connor v George Wimpey EAT 387/82 a scaffolder due to return to work at a platform in the North Sea was stopped before boarding the aircraft because of his drunken condition. The decision to dismiss this employee was held by the Employment Appeal Tribunal to have been "well within the discretion of a prudent employer" and his application to have been "completely without merit".

In Dairy Produce Packing v Beverstock [1981] IRLR 265 an employee in a less hazardous job was dismissed for drinking during working hours on a specific occasion and the dismissal was held to be unfair: the employer should have made clearer the importance which was attached to rules against drinking and have laid down specific penalties.

In H B Raylor & Co Limited v McCardle 31.7.85 EAT 573/84 a scaffolder with 17 years service was seen by a site office representative (i.e. a third party) returning to the building site "legless" in breach of very strict company rules. He claimed that he intended only to pick up his tools. The Employment Appeal Tribunal, reversing the decision of the Industrial Tribunal, upheld the dismissal. The reputation of the employer was regarded as a factor of importance.

The employer must be consistent in the way he applies such rules. In Kelly v Volex Accessories Division 30.3.88 COIT 1819/88 an employee had been dismissed for drinking at an office party, but the rules against drinking had not been strictly applied and it was therefore held by the Industrial Tribunal to be unfair to clamp down on him without warning. Similarly, although rules agreed in collective bargaining will normally be enforced (Gray Dunn & Co Limited v Edwards [1980] IRLR 23) appropriate steps should be taken to ensure that employees have notice (W Brooks & Son v Skinner 12.6.84 EAT 739/83) and that they are imposed in a manner which is contractually effective (Claypotts Construction Limited v McCallum 19.2.82 EAT 699/81).

The employee should be given an opportunity to explain himself and the facts should be investigated by the employer before a decision to dismiss is taken (Ladup v Barnes [1982] IRLR 7), but where such an investigation would clearly have made no difference (Wallace v Stranraer & District Railway Staffs Association for Scotland 11.2.86 EAT 610/85. - Doorman whose job was to exclude drunks was drunk himself) the dismissal will be upheld and in appropriate cases even where the dismissal is held to be unfair the employee will lose a proportion of the award (100% in Ladup v Barnes (supra) which involved a casino employee who grew and possessed cannabis; and 40% in Davis v British Airways Board EAT 139/80 where an airline steward with 82 years service forged amphetamine prescriptions) for having by his conduct contributed to his dismissal.

 

Alcoholism

Many doctors and other professionals working in the field of alcohol abuse draw distinctions between various types of drinking behaviour.

A common classification distinguishes occasional drinkers, moderate drinkers, heavy drinkers and alcoholics (for which a current euphemism is "dependent drinkers"). Those in the first 3 categories, including perhaps most of the employees in the cases referred to above (unless their drinking problems were more serious than the transcripts suggest) are seen as responsible for their actions and capable, to a greater or lesser extent, of controlling their drinking. They are thus subjected to normal disciplinary rules and procedures including those relating to alcohol consumption.

An alcoholic on the other hand cannot control his drinking or apply rational thought to its consequences. However much he drinks he is unable to accept that he is out of control or that he is damaging himself. He usually lies about his drinking even to his own doctor or lawyer. His "denial" extends to the consequences of his drinking which he blames on everyone and everything except himself. This denial allows him to rationalise many types of anti-social behaviour, such as theft, fraud, absenteeism, incompetence, promiscuity, aggressive, insulting or violent behaviour and of course his own drinking. He will contrive the most fanciful inventions when caught out. In Teszke and others v3M (UK) Limited 9.6.76 EAT 53/76, 3 women caught with a bottle of British Sherry at work claimed that they only intended to turn it into a lamp and not to drink the contents. They were not believed. Other excuses, only slightly less fanciful, have been accepted by the Industrial Tribunal.

Those with whom the alcoholic is in contact are often drawn into his way of thinking. His employer may regard him as an unsatisfactory employee but will generally focus on the effects of his drinking rather than on the drinking itself. This may partly explain why there are so few reported cases in which the issue of alcohol abuse is raised, even though the number of working days per year lost as a direct result of drinking has been estimated at 8,000,000 (British Medical Journal 17.9.83). The number of alcoholics in paid employment greatly exceeds the number of derelict drunks.

 

The Alcoholic Employee

A series of Scottish cases in the Employment Appeal Tribunal concern the dismissal of employees with symptoms of alcoholism. Here the Tribunal has had difficulty deciding whether the employee's drinking should be treated as related to his conduct and thus a disciplinary matter, or on the other hand as related to his capability or health. If the disease concept of alcoholism is accepted, the alcoholism of an employee is a medical matter and the employer must obtain medical evidence and consult with the employee before dismissing him on health grounds (East Lindsey District Council v Daubney [1977] IRLR 181).

Alcoholism is regarded as an illness by many medical practitioners. Its causes are multifactorial and may include genetic causes. It produces the physical and mental consequences, described above, many of which are also symptoms of other illnesses. Some of its symptoms respond to clinical and psychiatric treatment. Most alcoholics who recover, i.e. stop drinking, acknowledge that they are ill and accept help and treatment for their condition, as they might in recovering from any other illness.

The Employment Appeal Tribunal has viewed alcoholism as a health issue when a drinking problem is diagnosed as being "secondary". In Hepworth Pipe Co. Limited v Chahal 6.5.81 EAT 611/80 an employee was dismissed for drunkenness but it was subsequently shown that his condition was aggravated by diabetes. His previous work record had been good. His employer knew of the diabetes. The Industrial Tribunal and the Employment Appeal Tribunal indicated that the employer should have investigated whether this mitigated the offence.

In Strathclyde Regional Council v Syme 3.8.1979 EAT 233/79 a school janitor had a history of problem drinking dating back to 1975 when he had been given a "final warning". There was a recurrence in January 1976 but his promise to reform was not then enforced. Towards the end of that year he began drinking again and received medical treatment. In January 1977 he was asked to resign and complied.

This was treated as a dismissal under section 55(2)(a) of the Employment Protection (Consolidation) Act 1978. The medical evidence indicated that "the problem which the [employee] had was not related primarily to alcohol but to a manic depressive condition from which he suffered and for which he received treatment". The employer was not aware of this at the time of the "resignation". However the Industrial Tribunal's view was:

"Here was an individual with what appeared on the face of it to be a drink problem. Employers nowadays are expected to be cautious in visiting such conduct with disciplinary sanctions unless or until they have no reasonable alternative in the way of trying to discover an underlying cause for the problem or of making efforts to get the individual to have it resolved."

According to Lord McDonald who gave the judgment of the Employment Appeal Tribunal:

"This states any obligation which may rest upon employers too highly. Apart from their duty to their employees, local authorities responsible for educational establishments have a clear duty towards the pupils and staff employed there. If this had been a straight case of alcoholism there would have been much to be said for the view that the appellants had acted reasonably in all the circumstances. It is however an unusual case in respect that there is a great body of medical evidence tending to show that there was a deeper medical problem."

Accordingly the dismissal was held to be unfair.

Lord McDonald's conception of "straight alcoholism" assumes that some people just have a problem with alcohol and others have an alcohol problem which is secondary to some other condition. This is perhaps an oversimplification.

Alcoholism is sometimes regarded as a primary illness and sometimes (depending on the patient and the medical practitioner) as a symptom of something more deep seated. How any individual patient with a drink problem is diagnosed will depend amongst other things,

It is often suggested that inexperienced doctors fail to appreciate the importance of a drinking problem which the patient in his "denial" may have minimised or concealed entirely. In that event the patient is usually diagnosed as suffering from depression, schizophrenia or other mental illness, such illnesses having symptoms in common with alcoholism as well as sometimes being either the underlying cause or the effect of an alcoholic condition or indeed both a cause and an effect.

In my view, no lawyer should feel constrained to present his client's condition to a court or tribunal as "straight alcoholism". If he looks hard enough and obtains appropriate medical and other advice he will help his client to find the "deeper problem" and in doing so may help him to recover. Such an approach might have made Mr. Connor's case against George Wimpey (see above) seem less lacking in merit. Moreover, there are many dismissal cases, typically involving physical violence, sexual harassment or other antisocial behaviour, where alcoholism is the underlying factor and where it may be in the employee's interest that his drink problem should be explained to the tribunal to provide an explanation for otherwise inexcusable behaviour.

 

Alcoholism Policies and Employee Assistance Programs

Lord McDonald's approach in Strathclyde Regional Council v Syme does not explain how an employer can be expected to distinguish secondary alcoholism from "straight alcoholism" or indeed from irresponsible drinking by any other employee.

To deal with this problem amongst others, many large corporations and departments of the Civil Service and Local Government have adopted a policy on alcoholism and drug abuse or what is described in the United States as an "Employee Assistance Program". They usually include:

The benefits of such programs often reach beyond the immediate problem of substance abuse in making management more aware of human limitations and creating a more open and secure atmosphere. There is a US based "Employees Assistance Professionals Association Inc" a branch of which is in the course of formation in this country.

The decision of the Employment Appeal Tribunal in James McDowell v Seaforth Maritime Limited 22.8.1986 EAT 458/86 concerned an employer who had an "alcoholism policy". The employee was a telex operator and supervisor with the employer from 1981 to 1985. He had had a drink problem before he had started with them which he had not disclosed. He had many absences from work as a result of his drinking and had been examined by the company doctor. He had received treatment for alcoholism but this did not solve his problem.

He was found under the influence of drink at work in July 1985. Before this he had been on a drinking bout for about 2 weeks. He was seen by a manager who noted that he was making mistakes in telex messages. The manager accompanied him home, but suggested that he return to work the same afternoon which he said that he was unable to do. He agreed to see the manager the following Monday morning but failed to do so and failed also to appear in the afternoon of the same day, despite a further promise to that effect. So the employer delivered a letter to him by hand requiring him to appear the following morning.

The employee having failed once again to appear a letter informing him that he would be dismissed was delivered to him by the manager who described him as having broken down several times in the course of the interview.

He appealed through the employer's appeals procedure, explaining his failure to attend by reference to having been in alcoholic blackouts at some of the relevant times and fear of developing delirium tremens. The final appeal was to the managing director who:

"made it clear that the dismissal must stand but he arranged for [the employee] to be paid in lieu of notice... and suggested that if he was prepared to follow medical advice, and if necessary undergo medical treatment... he would receive a payment... The [employer] would also be as helpful as possible in the matter of helping him to obtain other employment thereafter. It was arranged that he would see a company doctor later that day."

The Industrial Tribunal found that the reason for the employee's dismissal was related to both conduct and capability. He had been guilty of gross misconduct when at work under the influence and the employer might have dismissed him at that point and in any event acted fairly in dismissing him after he had failed to appear in accordance with their requests.

On appeal the Industrial Tribunal's decision was criticised on the ground that the employer had failed to follow its own alcoholism policy. There had been no independent medical advice obtained before the dismissal or any appraisal of his problem. The only warning letter had been 4 years previously.

Both the Industrial Tribunal and a majority of the Employment Appeal Tribunal (Lord Mayfield presiding) considered that the Employer was not obliged to apply its alcoholism policy, which did not have contractual force, and was entitled to treat the matter as being disciplinary. Both Tribunals were, however, influenced by the fact that the employee had received sympathetic treatment in the earlier stages of his condition. The judgment and the employer's handling of the dismissal were thus in a sense a fudge of 2 contradictory approaches, the one viewing the employee's drinking as a disciplinary matter and the other applying to a limited extent the logic of the disease concept of alcoholism.

The dissenting member of the Employment Appeal Tribunal considered:

"That at the final incident it was clear that the [employee] was ill and his failure to attend on the various instances... were typical of the behaviour of an alcoholic... the [employer] should have regarded him as ill and, rather than dismiss him, have obtained a medical report. They had offered to have him examined after dismissal, that being so, it would have been sensible to have done so before."

There are a number of reasons why, I would suggest, the approach of the dissenting member is to be preferred to that of the majority.

Firstly, it is just as pointless for companies to adopt alcoholism policies and not to adhere to them, as it is for legal rules to exist and not be enforced.

Secondly, on the one hand it was regarded as significant that the employee concealed from the employer the fact that he had a drinking problem when he applied for employment with them. On the other hand the employer dismissed him for drunkenness whilst at the same time offering "to be as helpful as possible in obtaining employment thereafter". What that might have involved is not explained but can perhaps be guessed at: possibly a further application for a job without disclosing the drinking problem!

Thirdly, although the employee may have borne responsibility for having developed a drinking problem, his failure to attend in response to the employer's various summonses immediately before his dismissal seems to have been justified by his condition at that time,

Alcoholism policies are adopted to make it easier, rather than more difficult, for employers to handle such situations. The procedures which employers are required to follow when they are dealing with difficult employees often impose high standards and make it easy to criticise from hindsight. If the employer in McDowell had consistently acted in accordance with medical and other professional advice and discussed it with the employee, the employee might have been helped into recovery. If not the employer would have been in a position to point to the employee's failure to accept treatment or to follow advice as justifying dimissal. Either way the position might have been resolved much earlier than it was.

When advising their clients on disciplinary procedures lawyers should bear in mind the potential benefits of alcoholism policies. I have described above how there may be cases when a lawyer acting for the employee may advance his client's case by bringing his alcoholism into evidence. In other cases it may benefit the employer for this factor to be identified. Rarely will it be as obvious as it was in McDowell that the employee is an alcoholic. The employer may not connect the employee's unsatisfactory performance with his heavy drinking. He may wish to make the employee "redundant" or offer him "early retirement". Medical evidence may allow the employer to insist that the employee should either do something about his problem or leave. In the latter event the employer should be able to resist any claim for compensation or damages.

Hopefully the Employment Appeal Tribunal will adopt a more practical approach to alcoholism policies and employee assistance programs in future cases.

Jonathan Goodliff 1991