Can You Dismiss an Employee for Being Drunk at Work

Working under the influence of alcohol can present a serious health and safety risk and could have major implications for the employer, the employee and their colleagues. While being drunk at work in the UK is not a crime in itself, it can lead to disciplinary action, including dismissal, depending on the employer’s policies and the impact on job performance.

This guide provides practical advice for employers faced with an employee who is suspected to be drunk at work.

 

Section A: Legal Considerations for Employers

 

Employers have a legal duty under the Health and Safety at Work Act 1974 to take care, as far as reasonably practicable, of the health, safety and welfare of its employees. If an employee operates machinery or drives as part of their duties, this puts both the employee themselves and their colleagues at risk. If employers knowingly allow an employee who is intoxicated to continue working, putting the employee and their colleagues at risk, they could face prosecution.

In addition to health and safety risks, other aggravating factors can arise. It could mean that employees come into work late or do not show up at all, leaving their colleagues to plug the gap, or their line manager scrambling to find last-minute cover. If the employee is particularly hungover, they could struggle to perform their role, be unproductive, or worse, make costly mistakes. If service users or clients hear or see of employees undertaking work whilst under the influence of alcohol, it could damage your organisation’s reputation and image. But this does not have to be the case. Having rules in place to deal with employees who turn up the worse for wear, knowing what to do if an individual has a dependency on alcohol, or how to control excessive consumption at company events, is essential.

 

Section B: Can You Dismiss an Employee for Being Drunk at Work?

 

In the context of alcohol-related incidents, dismissal may be considered fair if it is based on clear evidence that the employee’s conduct has breached the terms of their employment contract or company policy. For instance, if an employee is found to be drunk at work and this behaviour negatively impacts their performance, endangers others, or breaches the company’s alcohol policy, an employer may have grounds for dismissal.

However, the process leading to dismissal must be fair and lawful. The employer must conduct a thorough investigation, giving the employee an opportunity to explain their actions. Following this, a disciplinary hearing should be held, where the evidence is reviewed, and a decision is made based on the facts of the case.

Dismissing an employee on the spot (‘summary dismissal’) for being drunk at work – without notice or nice pay – is not generally advisable. It’s important to follow a fair procedure, including investigating the incident, gathering evidence, and conducting a disciplinary hearing before making any decision about dismissal.

The employer could face a claim for unfair dismissal if they do not follow the correct procedures or if the dismissal is deemed disproportionate to the incident. For example, dismissing an employee without proper investigation or for a one-time offence that did not have a significant impact on the business may be considered unfair. In such cases, the employee may have grounds to challenge the dismissal through an employment tribunal.

Therefore, while dismissal for being drunk at work can be justified under UK law, it must be carried out in accordance with established legal standards to avoid claims of unfair dismissal.

 

Section C: If an Employee is Drunk at Work

 

If an employee turns up to the workplace and is unfit to work due to being hung over or under the influence of alcohol, you should deal with the matter in line with your policy on alcohol use in the workplace and your disciplinary procedure. Some employers strictly ban the drinking of alcohol during or before work, whereas others, depending on the sector, may allow moderate alcohol consumption, for example, during a celebration or lunch break with clients.

If you suspect an employee is under the influence of alcohol at work, follow your company’s established procedures. This may involve having a private meeting with the employee and discreetly removing the employee from their immediate duties, followed by an investigation and arranging a disciplinary meeting to discuss the situation.

Evidence should be gathered and if an alcohol test is carried out (as per your alcohol policy or their contract of employment), it is probably sensible to have a witness present. If an employee refuses to agree to the test, it is not necessarily a bar to taking action. The refusal can be used at future disciplinary proceedings providing they are aware of the company policy regarding the use of alcohol or there is a specific clause within their contract of employment.

It is often forgotten that alcohol can remain in the bloodstream for up to 24 hours, so an employee could turn up for work the next day and still be under the influence. However, over time, alcohol levels will naturally decrease. As such, if you have suspicions that your employee is under the influence of alcohol, investigations should take place without delay to make sure that risks are dealt with appropriately and reduced.

 

Section D: Alcohol Dependency Issues

 

If you suspect an employee’s drinking may be an issue, for example, they persistently turn up drunk at work due to alcohol dependency, offer and encourage the individual concerned to seek medical help or counselling. Signpost them towards relevant assistance programmes, and discuss their performance issues and the consequences for failing to improve.

If the employee is absent because they are attending counselling or treatment, this should be treated as sickness absence. However, if they fail to follow the recommended treatment or you continue to have issues with their conduct, performance, or attendance, you may decide to take disciplinary action.

 

Section E: Alcohol-Related Illness & Disability

 

In the UK, for an employee to be protected under the provisions of the Equality Act 2010 they must have a qualifying disability, which is defined in the legislation as a “physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.”

Long term is defined as an impairment lasting or likely to last for 12 months or more. This is likely to rule out the possibility of a claim for disability discrimination for having a hangover, for example. But what about those individuals who are dependent on alcohol? Under the Equality Act, alcohol dependency is not classed as a disability in itself, unless the addiction is a result of medically prescribed drugs. That said, employees who are alcohol dependent may have related health conditions, such as problems with their liver, which may amount to a disability. It is also possible that their alcohol dependence is a consequence or symptom of a disability. For example, drinking heavily due to severe depression.

If one of your employees appears to be suffering from dependency, you would be sensible to make further enquiries, including speaking to occupational health (if appropriate) to determine whether the employee could be suffering from an underlying disability.

 

 

Section F: Alcohol at Work Policy

 

The introduction of a drugs and alcohol misuse policy can help you to make sure there is consistent treatment of alcohol related issues in the workplace. Employers would be sensible to consider whether provisions relating to occasional drug and alcohol testing, including consequences any for non-compliance, should also be included in contracts of employment.

If an employee informs you they have a drug or alcohol problem, an effective policy should aim to help and support them rather than lead to their dismissal. However, it should also state when you will take disciplinary or other action. For example, that alcohol possession or turning up drunk at work will lead to immediate suspension pending a thorough investigation.

Every organisation can benefit from an agreed policy, which applies to all staff. Such a policy could form part of an overall health and safety policy, but a standalone drugs and alcohol policy has many advantages, leaving less room for misunderstandings.

When deciding what to do, you should consult others, particularly your employees. You should also consult safety representatives appointed by recognised trade unions. If your employees are not covered by such representatives, consult them directly, or indirectly via elected representatives for employee safety.

You may decide to place an outright ban on alcohol consumption on work premises, or prior to or during working hours or breaks, or take a more relaxed approach and allow moderate drinking during lunch breaks or when with clients, provided it does not impair their ability to do their job.

Your policy should clearly state that if an employee reports for work if they are unfit because of the influence of alcohol, this could be regarded as a gross misconduct matter and means they may face disciplinary action under the company’s disciplinary procedure.

Employees may be more likely to come forward and admit they have a problem if they feel assured their issues will be dealt with the utmost confidence. However, if evidence or information supplied to you suggests that an employee’s problem with alcohol has involved them breaking the law, then you will need to use your own discretion in relation to contacting the police.

Some companies reserve the right to demand an employee undergo a medical examination to find the cause of the issue. If the employee refuses, their refusal will normally be treated as gross misconduct. If the examination confirms they were under the influence of alcohol, the employer may reserve the right to suspend the employee while the matter is investigated. After the investigation has concluded, the employer may then decide to take disciplinary action.

If you choose to use screening and testing for drugs and alcohol, you should include that in your policy and in your employees’ contracts of employment.

You should regularly check whether your policy is working and if you need to make changes.

 

Section G: Alcohol at Company Events

 

It’s not uncommon for employees to indulge in one too many drinks at work-related events. To avoid potential issues or incidents, it’s helpful to remind employees beforehand that they should behave reasonably and consumption should not be excessive. If there is an expectation that employees are required to attend work on time the morning after the event, you should make this clear to them before the event. You should explain they may face disciplinary action if they fail to attend work the next day because they are too hungover.

During the party, you may decide to restrict the amount of free alcohol available and provide non-alcoholic alternatives. You must also ensure that any employees under the age of 18 are not served alcohol. If it appears you have allowed, condoned or encouraged over-consumption of alcohol, it may be problematic to fairly dismiss an employee if they commit alcohol-related offences.

You should give careful consideration to how employees will get home after the party. To stop people from drinking and driving, you might consider, if your budget allows, providing a coach to a central place at the end of the evening. Encourage employees to check when the last buses or trains are running and give them contact details for registered taxi companies.

 

Section H: Best Practice

 

To help manage the impact of alcohol in the workplace, follow these steps:

 

a. Communicate your expectations surrounding behaviour and alcohol clearly; in practice this is usually action though a company policy.

b. Ensure issues are dealt with appropriately, promptly and consistently. Do not allow certain levels of alcohol-related behaviour to slip and others not.

c. Provide training to line managers on signs to look out for and how to handle alcohol-related issues or incidents at work.

d. If your organisation is in a high-risk sector, an alcohol testing regime may already be in place as part of your health and safety obligations.

e. Find out how you can help employees seek help if they feel they have an issue. Alcohol can become a serious health issue and you have a duty of care to help employees in need. Directing employees towards medical assistance is a first step towards helping them to understand the dangers of alcohol and its misuse.

 

 

Section I: Summary

 

Dealing with an employee who is drunk at work requires quick and decisive action, while complying with your obligations as an employer. Any disciplinary procedure must be fair and lawful, from investigation to potential dismissal, to avoid claims of unfair dismissal. An alcohol policy is essential in setting expectations and managing such situations effectively. Ensure the policy is claalry communicated to the workforce, and that it is regularly reviewed and updated as required.

It is also important to consider the individual circumstances of the employee, offering support where appropriate, especially in cases where alcohol dependency may be a factor. By approaching the matter with fairness and consistency, employers can protect both their business and the wellbeing of their employees.

 

Section J: Need Assistance?

 

DavidsonMorris’ employment law experts work with employers to support with resolving workforce management issues, including disciplinaries and investigations. Working closely with our team of HR specialists, we provide a holistic approach to managing difficult circumstances that present considerable legal risk, such as alcohol-related issues in the workplace. For help and advice on your legal options as an employer, speak to us.

 

Section K: FAQs

 

Can you sack someone for being drunk at work?

If the employment contract or company policy classifies being drunk at work as gross misconduct, the employee could face disciplinary action, including dismissal. If the employee has an addiction problem, the employer should generally work with them to address this first before taking disciplinary action.

 

What happens if you are drunk at work?

If you are drunk during working hours, your employer should get another employee to drive you home, or arrange transport for you, and arrange a meeting to discuss your conduct using their alcohol at work or disciplinary policies.

 

Is it a crime to be drunk at work?

There are no specific laws concerning the consumption of alcohol at work, but organisations may have policies in place prohibiting workers from being drunk or drinking at work for health and safety reasons.

 

Can an employee claim unfair dismissal if they are fired for being drunk at work?

An employee may claim unfair dismissal if they are eligible and believe the decision to dismiss them was not justified or if proper procedures were not followed. To minimise the risk of an unfair dismissal claim, employers must ensure that the process is fair, evidence-based, and compliant with legal requirements.

 

What are my legal obligations as an employer in these situations?

As an employer, you are legally obligated to conduct a fair and thorough investigation before taking any disciplinary action. This includes giving the employee an opportunity to explain their behaviour and ensuring that any dismissal is reasonable and proportionate to the misconduct.

 

Should I offer support to an employee with an alcohol problem?

Supporting an employee who has an alcohol problem can be a positive approach, and in some cases, it may be a legal requirement under the Equality Act 2010 if the problem is linked to a disability. Offering access to counselling, rehabilitation programmes, or an Employee Assistance Programme (EAP) can help the employee while also fulfilling your duty of care as an employer.

 

What if the employee’s role involves safety-sensitive tasks?

If an employee’s role involves safety-sensitive tasks, such as operating machinery or driving, being under the influence of alcohol poses significant risks. In such cases, strict adherence to your company’s alcohol policy is crucial, and dismissal may be more easily justified if the employee’s behaviour endangers themselves or others.

 

How should I handle repeat offences?

Repeat offences should be managed according to your company’s disciplinary policy. If an employee continues to breach the alcohol policy despite previous warnings, this may strengthen the case for dismissal. However, each incident should still be treated individually, with a fair process followed at each stage.

 

Can I include a clause about alcohol in the employee’s contract?

Yes, it is advisable to include a clause in the employment contract that clearly outlines your company’s policy on alcohol consumption and the consequences of being drunk at work. This can help manage expectations and provide a clear framework for addressing any issues that arise.

 

Section L: Glossary

 

 

Term	Definition
Gross Misconduct	A serious breach of contract by an employee, such as being drunk at work, which may justify immediate dismissal without notice.
Employment Rights Act 1996	A key piece of UK legislation that outlines the rights of employees, including protections against unfair dismissal.
Fair Dismissal	A termination of employment that is justified, conducted with due process, and in compliance with legal requirements.
Unfair Dismissal	A dismissal that is deemed unreasonable or conducted without following proper procedures, potentially leading to legal claims by the employee.
Disciplinary Hearing	A formal meeting between an employer and employee to discuss allegations of misconduct and determine appropriate action.
Duty of Care	The legal obligation of employers to ensure the safety and well-being of their employees, including managing issues such as alcohol misuse.
Alcohol Policy	A set of guidelines established by an employer outlining acceptable behaviour related to alcohol consumption and the consequences of policy breaches.
Investigation	The process of gathering evidence and assessing the facts surrounding an incident of alleged misconduct before taking disciplinary action.
Employee Assistance Programme (EAP)	A work-based intervention programme designed to help employees with personal problems, including alcohol dependency, that might affect their job performance.
Mitigating Circumstances	Factors that may reduce the severity of an employee’s misconduct, such as health issues or personal problems, which should be considered before making a dismissal decision.
Equality Act 2010	UK legislation that protects individuals from discrimination in the workplace, including those with disabilities that may involve alcohol dependency.
Reasonable Adjustment	Changes made by an employer to support an employee with a disability, which may include measures to address alcohol-related issues under the Equality Act 2010.
Summary Dismissal	Immediate termination of employment without notice, typically due to gross misconduct, such as being drunk at work.
Appeal Process	The procedure that allows an employee to challenge a dismissal decision, ensuring that the decision was fair and properly considered.

 

 

Section M: Additional Resources

 

ACAS – Discipline and Grievances at Work
https://www.acas.org.uk/discipline-and-grievances-at-work
Provides detailed guidance on handling disciplinary issues, including misconduct related to alcohol use at work.

 

UK Government – Employment Rights Act 1996
https://www.legislation.gov.uk/ukpga/1996/18/contents
Access the full text of the Employment Rights Act 1996, which outlines the rights of employees and the responsibilities of employers in the UK.

 

Health and Safety Executive (HSE) – Alcohol and Drugs at Work
https://www.hse.gov.uk/alcoholdrugs/
Offers advice on managing the risks associated with alcohol and drugs in the workplace, including the legal duties of employers.

 

UK Government – Equality Act 2010
https://www.legislation.gov.uk/ukpga/2010/15/contents
Provides information on the Equality Act 2010, including protections against discrimination for employees with disabilities, which may include alcohol dependency.

 

NHS – Alcohol Support
https://www.nhs.uk/live-well/alcohol-support/
Offers resources and advice for individuals dealing with alcohol dependency, which can be shared with employees as part of a supportive approach.