Liberty Living Plc v Reid

For a misconduct dismissal to be fair, the employer must apply its disciplinary rules consistently and communicate the relevant prohibition clearly enough for the employee to understand the case against them. A policy prohibiting being under the influence of alcohol during working hours does not necessarily prohibit consuming a single alcoholic drink away from the workplace. Nor may an employer treat that consumption as gross misconduct where its policy reserves that classification for being under the influence. Confusion between the allegation, the policies and the reason for dismissal may place dismissal outside the range of reasonable responses.

The employee was dismissed after drinking a lager shandy in a bar away from the workplace during working hours. The employer’s Disciplinary Policy identified being under the influence of alcohol during working hours as gross misconduct. Its Alcohol and Drug Policy prohibited consumption or being under the influence while performing company business or in the workplace, with disciplinary action up to and including dismissal.

The Employment Tribunal’s majority found the dismissal unfair because the policies were confusing and the employee had not known of the Alcohol and Drug Policy. The Employment Judge dissented. The employer appealed, arguing that the majority had substituted its own view for that of the reasonable employer and that the employee’s admissions showed awareness of the prohibition.

1. Appeal dismissed. The majority decision that the dismissal was unfair was upheld.
2. Under Employment Rights Act 1996, sections 98(1) and 98(4), conduct is a potentially fair reason, but the employer must act reasonably in treating it as sufficient to justify dismissal. The established requirements include a genuine belief in misconduct, formed on reasonable grounds after reasonable investigation, and dismissal within the band of reasonable responses: British Home Stores Ltd v Burchell and Iceland Frozen Foods v Jones.
3. The employer’s policies were confusing. The Disciplinary Policy expressly treated being under the influence of alcohol during working hours as gross misconduct. The Alcohol and Drug Policy prohibited consumption or being under the influence while performing company business or in the workplace, but did not classify every breach as gross misconduct and did not prohibit drinking away from the workplace while not performing employment duties.
4. Even if the employee had known of the Alcohol and Drug Policy, it did not prohibit the conduct in question unless drinking caused him to return to work under the influence. The employer was not entitled to infer knowledge of that policy merely from the employee’s admission that he should not have been drinking.
5. The employer compounded the problem by charging the employee with being under the influence, questioning him on the basis that any consumption was prohibited, and dismissing him for consuming alcohol during working hours. It therefore failed to apply its own policies and did not provide a fair basis for dismissal. The majority’s reliance on a manager’s prior knowledge of the employee drinking during breaks was unnecessary, but the conclusion remained sound without it.

• Employment Appeal Tribunal: dismissed the employer’s appeal and upheld the Employment Tribunal majority’s finding of unfair dismissal.