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Employee Unfairly Dismissed for ‘Smelling of Alcohol’

Employee Unfairly Dismissed for ‘Smelling of Alcohol’

Date: 25th June 2015 | By: Claire Malley | Categories: Employment law

In the recent case of McElroy v Cambridgeshire Community Services, Mr McElroy, a healthcare assistant was dismissed for ‘smelling of alcohol’. A colleague had informed a manager that he smelt of alcohol, Mr McElroy was then duly suspended and, following a disciplinary procedure, later dismissed.

Being drunk or under the influence of alcohol is often in employee’s handbooks as a potential gross misconduct issue. Management clearly thought that they had an open and shut case, especially when Mr McElroy’s reasons for the alcoholic smelling breath varied and were not consistent.

However, what appears to be a large failure in this case, and where Companies often fall down in these situations, is gaining actual evidence of an offence. There is a difference between having one drink in the lunch break, and being under the influence, for example, especially where there is no ‘Zero tolerance’ approach taken by the business.

breathalyzerIt appears that no one breathalysed Mr McElroy, which would have been critical evidence, and clearly resolved the issue over whether he was drunk at work, under the influence, or neither. It could’ve been something else, such as simply failing to brush his teeth from the night before.

It is useful for companies to purchase some breathalysers, and there are many different types at varying prices. There was also no evidence that his speech was slurred, he was falling over or failing to walk in a straight line, or that there was any adverse effect on his performance.

Because this was a gross misconduct allegation, the burden is quite high on the levels of investigation required.

Peter Holmes, an Employment Law Consultant with Wirehouse confirmed that “without gaining contemporaneous evidence, it is going to prove difficult for an employer to demonstrate a genuine belief of the alleged misconduct, simply because the investigation is not reasonable, thorough or detailed enough. In short, someone’s word that an employee ‘smelled of alcohol’, simply isn’t going to cut it in an employment tribunal, as Cambridge Community Services unfortunately recently discovered”.

For advice on conducting disciplinary hearings, or for employment law advice in general, contact Wirehouse on 0800 051 4211 or email

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