Appeal No. UKEATS/0039/10/BI

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
	On 2 February 2011

Before
THE HONOURABLE LADY SMITH
MISS S AYRE FIPM FBIM
MR R THOMSON

LIBERTY LIVING PLC	APPELLANT

MR ALLAN REID	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MICHAEL MCLAUGHLIN
(Solicitor)
Biggart Baillie LLP
Dalmore House
310 St. Vincent Street
Glasgow
G2 5QR	
For the Respondent	MR DEAN PURDIE
(Solicitor)
DJP Solicitors
257 Holburn Street
Aberdeen
AB10 7FL	

SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal

Unfair dismissal.  Misconduct.  Employee who drank an alcoholic drink outwith workplace but during working hours dismissed for misconduct.  Employer had a Disciplinary Policy which provided that being under the influence of alcohol during working hours was gross misconduct which could lead to summary dismissal and a Drugs/Alcohol policy which provided that consumption of alcohol or being under the influence of alcohol while performing company business or in the workplace was prohibited and could lead to disciplinary action up to and including dismissal including for a first offence.  Employee unaware of Drugs/Alcohol policy.  Majority decision of Employment Tribunal that dismissal unfair because dismissal based on a policy of which he was unaware and which was also confusing.  Appeal based on the reasoning of the minority that it was reasonable for the employer to conclude the employee was aware of the policy refused and finding of unfair dismissal upheld.

THE HONOURABLE LADY SMITH 
Introduction
1.	This is an employer’s appeal from a judgment of the Employment Tribunal sitting at Aberdeen, Employment Judge Mr N M Hosie, registered on 28 April 2010 and finding that the Claimant, who was dismissed for misconduct, was unfairly dismissed.

2.	We will continue referring to parties as Claimant and Respondent.

3.	The Respondent was represented by Mr M McLaughlin, solicitor, before the Employment Tribunal and before us.  The Claimant was represented by Mr D Purdie, solicitor, before the Employment Tribunal and before us.

Background
4.	The Respondent owns and manages various student accommodation properties in Aberdeen and the Claimant was employed by them as a “Maintenance/ Caretaker” at a site in St Peter’s Street.  He had been in their employment since January 2006.

5.	The Respondent has two employment policies which are relevant for the purposes of this appeal.  The first is their Disciplinary Policy, which includes the following:

“Summary Dismissal 
Employees may be summarily dismissed if it is established, after investigation and hearing the employee’s version of the matter, that there has been an act of gross misconduct……..In particular this includes:
………….
5. being under the influence of alcohol …during working hours.”

6.	The second is their “Alcohol and Drug Policy” the provisions of which include:

“Alcohol
Consumption of alcohol or being under the influence of alcohol by any employee while performing Company business or in the workplace is prohibited …..
………….
Discipline
Violation of this policy can result in disciplinary action up to and including discharge even for a first offence….”

7.	On 4 December 2008, the Claimant left his workplace during the afternoon and went to a bar at the Grampian Health Club where he had an alcoholic drink.  His position throughout the disciplinary proceedings that ensued was that he had a pint of lager shandy.  He was found there by the General Manager, Sharon Morrison.  He could not give her any explanation as to why he was there and she told him she was not interested in that as the fact of the matter was that she had caught him in a pub drinking alcohol “something that is not permitted on company time” (see: Tribunal’s judgment  at paragraph 12).

8.	The same day, a letter was handed to the Claimant calling him to a disciplinary hearing on 8 December 2008.  The relevant part of the letter contained the allegation:

“Being under the influence of alcohol during working hours.”

9.	The Respondent’s Disciplinary Policy was enclosed with the letter.  Their Drugs and Alcohol Policy was not enclosed.  At paragraph 15, the Tribunal found:

“Mr Reid was unaware of the existence of this policy until it was sent to him was prior to his Appeal, but after he had been dismissed.  The Tribunal unanimously accepted his evidence in this regard.”

10.	The reference there to “this policy” was a reference to the Drugs and Alcohol policy.

11.	The disciplinary hearing took place on 8 December 2008 and was conducted by the Respondent’s Newcastle General Manager, Andrew Hopper.  The minutes record:

“OK, one’s done.  Moving on to the second one.  Being under the influence of alcohol during working hours.  What’s your story about that.
Under the influence, I would say that on the Thursday I did have a pint of lager shandy.  I know I shouldn’t have done that.  I got away from the situation.
What situation?
The Caroline and Sharon situation, I felt like walking off the site because I heard Caroline saying and you probably have a copy of this, saying that I was aggressive towards her.
I do have a copy of that.
Just slagging off and I felt smothered and I wasn’t feeling too well.
Right, so you walked off site and went to the pub?
Yes.
You are aware of the Company Policy regarding alcohol?
Are you aware that it might be considered dangerous for you to have alcohol and then use machinery or any kind of electric saw.
I think a lager shandy, I wouldn’t think so.  It depends on how much alcohol you consume.  
It has to be under the influence and it doesn’t matter how alcohol affects you in that way.  But you shouldn’t drink whilst on duty.
Yes.
And you are aware of that?
Yes.
So you were drinking alcohol during working hours, you appreciate that?  There seems to be a point in point 3.  You admitted you drank alcohol during working hours.
I drank alcohol on that day.
Yeah that was during working hours was it not?
Well, it’s more about going back to work after having consumed alcohol I think is more….
It’s against Company Policy to consume alcohol during working hours end of.  Even if it is a break or not.
Is it Company Policy for being invited down here in working hours and take alcohol (see JI34, paragraph 3).
Why you asking that question?
We had a staff get-together, it was something that we thought would be a quite a good idea (sic) for all staff inviting them all to one area, get fish and chips and some wine and beer, it was authorised by [             ] (sic) it was something they had done in Newcastle as a one off thing.
Not during working time?
Not during working time, we saw this as quite a good idea closing office when the University sites were closed and we were off the clock.
So it was officially then outside of working hours?
In this office.
So you wouldn’t have expected anyone to go back and operate either office machinery or big machinery or be in charge of anything whilst under the influence.
Ok.
The Policy is one aspect Jim Kirk had two BBQs a year up at Rosemount, is that correct?
That’s right yes.
And alcohol was involved and the last time I was up there I was handed a can of beer when I was on call at the time and we sat there on site drinking and he said to me Allan, you’re on call and I said I know so I had one can of lager.  So at the BBQ so the policy seems to work….is that correct?
It was two years ago….
Anyway…
You’re getting a little off the point Allan but I think you were in working hours.  You were in the pub, it doesn’t matter whether it’s a break or not you consumed alcohol.  That’s correct is it not?
Yes.”

12.	At the close of the hearing, the Claimant was advised:

“You consumed alcohol during work time and unfortunately that is deemed as an act of gross misconduct so I’m sorry to say Allan that we’re going to have to say goodbye to you.”

13.	By letter dated 10 December 2008, the Claimant was dismissed:

“Andrew Hopper’s findings were as follows:
Threatening and intimidating behaviour towards Caroline Pollock & the breakdown in the working relationship with a number of your colleagues.
It was established that your relationship with Caroline Pollock was volatile but you disputed demonstrating any physical aggression towards her.  It was agreed that there was a complete breakdown in the working relationship with Caroline & yourself.  You stated that this breakdown had been exacerbated by unacceptable behaviour by both parties.  No possible solutions could be found to reverse this situation.
Being under the influence of alcohol during working hours:
You accepted that you had consumed alcohol during working hours on Thursday 4 December 2008.  You acknowledged that this was contrary to Company Policy and you were informed that this could have posed a health & safety risk as your role involves the use of potentially dangerous machinery etc.
You were informed by the disciplinary outcome meeting that being under the influence of alcohol during working hours was considered as gross misconduct and is therefore judged to be sufficiently serious as to warrant summary dismissal.”

14.	The Claimant appealed by letter dated 14 December 2008 which was in the following terms:

“Although I did admit to having a small amount of lager shandy, less than one pint, during my break I was certainly not under the influence of alcohol.  I enclose definition of under the influence.
If the company has no alcohol policy can you explain why I have been invited to drinking establishments by various management of Liberty Living where alcohol was consumed and maintenance persons then returned to work.  Proof of this can be provided by your accounts department.
No procedure was followed to ascertain if indeed I had consumed any alcohol re testing on any kind.
During his employment at Rosemount Jim Kirk maintenance person organised several barbeques to which all staff and management in Aberdeen were invited.  Management of Aberdeen were present on at least two of these occasions, alcohol was freely being consumed except for myself as I was on call on two of these occasions.
The only reason I was in the bar this time was due to the stress levels I was feeling as Caroline Pollock’s harassment and threatening behaviour towards me that day had caused me to feel unwell and required to relax for a short time.  
It seems to be double standards when Caroline Pollock can organise food and alcohol during working hours with in my opinion no cover what so ever at any of the sites for any eventuality that may occur, again I was responsible enough at that occasion to only consume one can of lager as I was again on 24 hour call.  When certain individuals ran out of alcohol Caroline Pollock went to Tesco to purchase even more alcohol.  Finally regarding risks of potential dangerous machinery etc. the only mechanical machinery that could be deemed dangerous is a lawnmower and a grass strimmer and a hedge trimmer which I certainly wouldn’t be working in the rain and in the dark.”

15.	An appeal hearing took place and was conducted by Brian Welsh, Area Operations Manager.  The following exchanges took place:

“Right.  That’s great so we have established that you were in the pub and the other thing that was as I understand from the statement is that you were drinking some form of alcohol (sic).
Well I was actually drinking a lager shandy which if I could just clear that matter up.  Perhaps this is a statement from the person who actually served me.  He is the steward who was working at the time (JI61)
Right so Allan has got it here from the Club Steward, Vince Keith dated 28 December (JI61).  Have you passed this one on to HR at any point?
No.  My solicitor had asked me to maintain this until this particular hearing………
………………………………………………………………………………………
Right.  So Allan you have presented your evidence from Vince Keith the Assistant Steward who says that you were drinking a Caliber and lemonade.  So I’ll add that into the file and that will be taken forward for consideration.  So that’s good.  There’s one thing I am going to give back to you at this stage now because seen as we are swapping new evidence this is a statement from Sharon Morrison about the drink (JI74) so just so you have a full picture.  
…………………………………………………………………………………………..
Now on the other side of the appeal process was that you felt the judgment was too harsh as in you suspect that dismissal for gross misconduct was too harsh an option to take.
On my employment record, I have never had a verbal warning in 46 years employment, let alone I’ve never been dismissed from a job.  Right to go through the procedure.  Lets say that over the last 2 or 3 weeks that I was being put under a bit of pressure unfairly I think.  Now I have read the policy.  This policy through and through along with obviously other people.  Can I say this, this policy, the only time I have actually saw this right was after this was sent to me by Paula Lagdon by post and this is the first time that I have ever seen this particular document.”

16.	The Claimant was advised of the outcome of his appeal hearing by letter dated 26 January 2009 which included the following:

“Brian Welsh’s findings are as follows:
The new evidence supplied by you during the Appeal Hearing was measured against the conflicting evidence supplied by Sharon Morrison (General Manager) and after careful consideration of all the surrounding circumstances of your case it is Brian’s opinion that you have failed to sufficiently disprove the allegation that you were drinking alcohol during working hours.  Therefore, we maintain that we have a reasonable belief that you had consumed alcohol during working hours on Thursday 4th December 2008.
The original decision to summarily dismiss you is upheld and your dismissal will remain effective from the 8th December 2008.”

17.	Accordingly, the Claimant had been called to a disciplinary hearing for an alleged breach of a rule which was said to prohibit him from “being under the influence” during working hours.  His attention was directed to the disciplinary policy which provides that such conduct is gross misconduct.  However, the questioning at his Disciplinary Hearing proceeded, at four points, on the basis that company policy prohibited the consumption of any alcohol at all during working hours, irrespective of whether or not an employee was judged to be under the influence of alcohol at work.  None of the questioning sought to establish that the Claimant’s words or conduct when he was found in the bar demonstrated that he was “under the influence of alcohol”.  Further, the Claimant was told at the end of the hearing that the reason for his dismissal was that the consumption of any alcohol at all during the working day constituted gross misconduct.  Then, his letter of dismissal told him under a heading that indicated that he was dismissed for being under the influence of alcohol that he was being dismissed both for consuming an alcoholic drink during the working day and for being under the influence of alcohol during working hours.  Finally, when it came to his appeal, as the decision letter shows, his dismissal was upheld because he had consumed alcohol during working hours.

18.	The Claimant stated in evidence before the Tribunal that Sharon Morrison knew he went to the Health Club regularly during his breaks and drank shandy but he had not been disciplined for doing so in the past.  The majority accepted his evidence about that matter.  He did not, however, rely on it during the disciplinary process.

Tribunal’s Judgment
19.	A majority of the Tribunal found that the Claimant was unfairly dismissed because he was not aware of the respondent’s Drugs/Alcohol Policy and the policy was, in any event, confusing.  They had regard to the Claimant’s admission at the Disciplinary Hearing that he knew he should not drink whilst on duty but judged that that did not alter matters because the Claimant made it clear in his appeal letter that he thought that summary dismissal only applied where an employee was under the influence of alcohol.  The majority referred to two other matters as being relevant.  The first was that Sharon Morrison knew that he went to the Health Club during his breaks and drank shandy – as above noted, the Claimant did not rely on that during the disciplinary process.  The second was that his break was late in the day in December and there was no chance that he would be using any equipment again that day – the Claimant did rely on that matter, referring to it at the end of his appeal letter.

20.	In these circumstances, the majority took the view that since it appeared that Liberty was not itself clear as to what its policies were, since confusion was created at the Disciplinary Hearing by there being references both to a prohibition of being “under the influence of alcohol” and against any “consumption of alcohol”, and since Liberty had failed to communicate their policies clearly to the Claimant, dismissal was not within the range of reasonable responses and was unfair.

21.	The Employment Judge did not agree with the minority.  He considered that, given what the Claimant said during the Disciplinary Hearing, it was reasonable for Andrew Hopper and Brian Welsh to conclude that the Claimant was aware of the Drugs/Alcohol policy, that drinking alcohol at all during working hours was a serious matter and that if he did so, it was likely to lead to summary dismissal.  He also found that the Claimant’s assertion that he was only drinking a low alcohol lager was not credible because it was only raised by him late in the disciplinary process – faced with the prospect of losing his job, he would have stated what he was drinking at the outset.

22.	The Employment Judge added that it was arguable that by drinking any amount of alcohol, however small, an employee would be “under the influence” of alcohol.  He found the dismissal to have been fair.

Relevant law
23.	The relevant law is clear and was not misunderstood by the Tribunal.  Under s.98(1) of the Employment Rights Act 1996, it was for the Respondent to establish that the dismissal was for a potentially fair reason and if he did so, the Tribunal then required to consider whether or not the employer acted reasonably in treating the reason as sufficient to justify dismissal (s.98(4)).  Conduct is a potentially fair reason.  If the employer establishes that the dismissal was on conduct grounds then it will not amount to a fair dismissal unless the employer held a genuine belief in the employee’s misconduct formed on reasonable grounds after a reasonable investigation (British Home Stores Ltd v Burchell [1978] IRLR 379) and, in all the circumstances, dismissal fell within the band of reasonable responses open to an employer (Iceland Frozen Foods v Jones [1982] IRLR 439).

The Appeal
24.	For the Respondent, Mr McLaughlin’s submissions were, essentially, that the majority’s decision was perverse, that they had erred in law by substituting their own view for that of the reasonable employer (London Ambulance Service NHS Trust v Small [2009] IRLR 563) and that we should follow the minority view and substitute a finding that the dismissal was fair.  He relied on the admission made by the Claimant at the Disciplinary Hearing that he knew he should not have been drinking.  That showed that he knew of the Respondent’s Drugs/Alcohol Policy and it was perverse to proceed on any other basis.  The Claimant had not, he submitted, at any time indicated that he was not aware of the terms of the policy – his letter of appeal did not indicate that.  The Claimant had not stressed that he was drinking a low alcohol drink at an early stage.  The majority had relied on Sharon Morrison’s knowledge of him drinking in the health club at his breaks and on the position being that the Claimant would not be working outside again that day, but the Claimant had not relied on either of these matters during the disciplinary process.  This all showed that the decision reached was perverse and was a substitution that the majority were not entitled to make.

25.	For the Respondent, Mr Purdie began by accepting that the majority had, in referring to Sharon Morrison’s prior knowledge, relied on a matter not raised by the Claimant in the disciplinary process but regarding the position being that the Claimant would not be working outside with equipment again that day, he had referred to that matter in his appeal letter.  Otherwise, he submitted that the appeal was not well founded.  There was a plain lack of clarity and contradiction within the Respondent’s policies.  The Claimant was “charged” with being “under the influence”, his position was that he was not “under the influence” albeit that he accepted that he had had an alcoholic drink.  The Claimant had no fair opportunity to present his case because no-one seemed to know what the rules were.

Discussion and Decision
26.	We agree with the majority that the Respondent’s policies are confusing.  There is only one mention of alcohol in the Disciplinary Policy.  That is where it is provided that “being under the influence of alcohol ..during working hours” is gross misconduct.  It is expressly stated that if an employee commits an act of gross misconduct he may be summarily dismissed.  Thus, in that policy, employees are given clear notice that, so far as alcohol is concerned, it is only “being under the influence of alcohol…during working hours” that is specifically separated out as gross misconduct which will put them at risk of losing their jobs.  It is, however, made plain that if an employee commits that act of misconduct then a very serious view will be taken of it.

27.	Turning to the Drugs/Alcohol Policy, employees are notified that consumption of alcohol “while performing Company business or in the workplace” is prohibited.  It is not stated to be gross misconduct to do so.  Employees are warned that breach of the prohibition “can result in disciplinary action” and that action could be “up to and including discharge”.  That is, so far as penalty is concerned, the focus is not only on the risk of dismissal.  Other sanctions could be imposed – the impression of a very serious view invariably being taken of such conduct is not given by the wording of this policy.  The emphasis is, rather, on the employer retaining a wide discretion as to how such breach of the prohibition will be viewed.  More importantly, however, given the facts of the present case, drinking an alcoholic drink during working hours outwith the workplace when not carrying out employment duties, is not prohibited.  If that drinking led to the employee being “under the influence of alcohol” and he returned to the workplace in that condition, then he would be in breach of the prohibition but the mere consumption of a single alcoholic drink in a bar outwith the workplace is not, in itself, prohibited by the policy.

28.	Accordingly, even if it ought to have been concluded that the Claimant was in fact aware of the Drugs/Alcohol Policy, as was the view of the Employment Judge, all that that would have meant was that he was aware of a policy which did not prohibit what he did on 4 December 2008.  We do not, however, agree that Mr Hopper and Mr Welsh were, in the circumstances, entitled to conclude that the Claimant knew of the policy.  His admission was that he knew he should not have been drinking but that does not point to knowledge of the policy because, as discussed, the policy did not prohibit all drinking during working hours.  Further, we agree that the Claimant’s appeal letter makes it clear that he thought that whilst being under the influence of alcohol would have amounted to misconduct, there was no policy prohibiting all and any consumption of alcohol (see: paragraphs 2,3 and 4 of the letter).

29.	Whilst the majority should not also have relied on Sharon Morrison’s prior knowledge, the principal reason for them finding the dismissal to be unfair was the confusing nature of the Respondent’s policies and their failure to make them clearly known to the Claimant in advance.  It is clear that they would have reached the same conclusion even without reference to the Sharon Morrison matter.  So far as the reference to the time of day and the fact that the Claimant would not be working outside again with equipment that day, we do not accept Mr McLaughlin’s submission- the matter was referred to by the Claimant in his appeal letter and the majority were, accordingly, entitled to take it into account as something to which the Respondent should have had regard.

30.	We cannot fault the majority’s reasoning or conclusion.  We would only add that, as already observed, there was not only confusion on the Respondent’s part as to what their Drugs/Alcohol Policy meant and contradiction as between the two policies but also confusion as between their communication to the Claimant of what he was charged with and what he was dismissed for.  The Drugs/Alcohol Policy draws a distinction between being under the influence of alcohol and consuming alcohol.  It follows that even if it could be argued, in principle, that it could be said that a person who drinks one alcoholic drink must thereby be under the influence of alcohol, that is expressly not the Respondent’s approach.  It was, accordingly, not open to them to say that although they had “charged” the Claimant with “being under the influence of alcohol”, that covered a situation where he had had single alcoholic drink or that because he had had a single alcoholic drink, he was guilty of being under the influence of alcohol.  Nor was it correct to tell him, as Mr Hopper did, that it was against company policy to consume alcohol during working hours “end of” because that was not, as we have explained, what either policy states.  Similarly, he was wrong to tell the Claimant that the fact that he consumed alcohol during work time was deemed to be an act of gross misconduct – the only policy that defines gross misconduct is the Disciplinary Policy and that is not what it says.  It can only be concluded that not only did the Respondent not apply their own policies but they did not themselves know what they were.  Their approach was not a fair one and it was no proper basis on which to dismiss the Claimant.

Disposal
31.	In these circumstances, we will pronounce an order dismissing the appeal.