Legislation relating to alcohol at work

[Kirei]

Please could someone help me find a piece of legislation, not anecdotal, which shows that alcohol dependence should be treated as a sickness by employees? I know it should be but I can't find anything to support this.

Also any help with demonstrating it should be capability not conduct

Edited June 2, 2012 by Kirei

[elche]

Well all you have got to my knowledge is a potential argument based on the Equality Act 2010

 

The Equality Act 2010 (Disability) Regulations 2010 (SI 2010/2128) specifically provide that addiction to alcohol, nicotine or any other substance (except where the addiction originally resulted from the administration of medically prescribed drugs) is to be treated as not amounting to an impairment for the purposes of the Equality Act 2010. Alcohol addiction is not, therefore, covered by the Act.

 

However, an employee may have a physical or mental impairment that does amount to a disability within the meaning of the Act but which was caused by or was the result of alcohol addiction, for example a serious liver condition or a depressive illness. The employee would in this case be disabled, notwithstanding that the disability was caused to a large extent by the alcohol addiction. The cause of the disability is not relevant. Conversely, the alcohol addiction could be a symptom or side effect of some other medical condition from which the employee is suffering, which itself amounts to a disability.

 

Therefore, where an employee is or appears to be suffering from alcohol addiction, the employer should make further medical enquiries in order to ascertain whether there is an underlying medical condition, either caused by or the trigger of the alcohol addiction, which is a disability.

 

http://www.xperthr.co.uk/faqs/topics/6,57/disability-discrimination.aspx?articleid=60637

 

But whilst dependency on drink is now more likely to be treated by an enlightened employer as a medical condition, thus, a capability issue, it could still also be viewed as misconduct, and indeed depending on your type of job (safety of the public, yourself or co-workers), gross misconduct.

 

Generally speaking what do you do, and how long have you worked there?

 

Che

[Kirei]

Thank you for your reply. It's an admin role and they have stated it's gross misconduct as danger to myself and others, etc. I have been there over a year but only directly employed for a few months so I know I can't claim unfair dismissal. I'm looking at what to put in my appeal.

I am an alcoholic which they didn't know about but they did know about my depression. Something in my personal life happened and I reached for a drink and ended up drunk at work, the first time it had happened. I've since taken steps to increase my attendance at AA, and the doctor, trying to ensure this doesn't happen. By firing me it's going to be really hard to get another job.

I am going to appeal because they ignored the mititgating circumstances but I want to say they should have used their capability policy. They don't have an alcohol policy. In their dismissal letter they haven't mentioned my illness or the mitigating circumstances that I told them about. I have a clean record etc. I know being drunk at work IS gross misconduct but as I am ill can I say they should have considered that? I'm not sure how to say it if you see what I mean?

On the appeal letter should I go into details of all this or just say I'm appealing?

[elche]

Thank you for your reply. It's an admin role and they have stated it's gross misconduct as danger to myself and others, etc.

 

On what basis is being under the influence doing an admin role a danger to yourself or others? Just wondering if they have expanded on this point.

 

As stated on the earlier post whilst alcohol addiction is in of of itself not covered by the EA the depression might be and, if it were you wouldn't need 12 months service to bring a claim. That is if it were and there are other CAGGERS with a better knowledge in this area than me .....

[Kirei]

Thanks, they just said that. They sent me home pretty quickly after. Do you think I should just put a letter saying I'm appealing or a long one writing my whole claim out?

[elche]

I think you may well be able to make them a bit nervous about the dismissal if you attempt to link it to the potentially protected characteristic i.e. the depression (if this is indeed a PC). Thus it would be worth considering thinking how the facts can be presented in a way that brings this is in as being a factor in the behaviour that they view as misconduct and are ultimately dismissing you for.

 

Ultimately it is your appeal, and it is unlikely that they will do much digging into issues which you do not specifically raise.

[Kirei]

Thanks, I am going to word it in that way. Throughout the hearing I mentioned my depression , and that my alcoholism is linked to it., but they just gloss over it

[elche]

Thanks, I am going to word it in that way. Throughout the hearing I mentioned my depression , and that my alcoholism is linked to it., but they just gloss over it

 

Was the hearing minuted? Have you asked for a copy?

 

Would be good to know if the minutes include reference to the depression.

[Kirei]

Yes, and they do but only from me.

[elche]

Well at least it is on record that it was raised.

 

Thus IF this is a PC, and IF you have been dismissed because of it, you MAY be able to get somewhere with a disability discrim claim but there are two big 'ifs' and a 'may' in that sentence.

 

Can you get a friend with some legal or HR experience to help you draft your appeal letter?

[Kirei]

I actually have a law degree but it was 15 years ago and I never did that much in employment. I'm really grateful for your advice. I think it is a PC (depression not alcoholism) and nI have been dismissed. Do you think it's worth mentioning the D word in the appeal letter? I was going to focus on saying they should have considered it as a sickness for the appeal with them and should have considered mitigating circumstances, but if the appeal fails maybe raise a tribunal claim as DD then(?)

[elche]

I think any ET will not look kindly an an employee who deliberately attempted to conceal a disability and then raise a DD claim.

 

Indeed the EA states that an ER will not be guilty of discrim if they, "did not know, and could not reasonably have been expected to know" that the disabled person concerned had the disability (s.15(2)"

 

Now I'm not suggesting that is the case here as it seems clear if you have raised this in a minuted meeting then they should have been aware of it. But what is certain is that if there is an eventual ET claim, then your appeal letter will be in the evidence bundle and you can bet the respondent's representative will be happy to highlight the fact that there are issues you didn't mention in that that you are now mentioning.

 

As for employment law, if you have the ability to pass a law degree then you can understand employment law. Whilst some areas can be shockingly complicated (funnily I consider discrim to be one of these!) there is also so much common sense under pining all of it.

 

If it were me I would being doing some research on disability discrim both under the (old) DDA and the (new) EA and carefully drafting my appeal letter so that this is in it but without 'shouting' it from the rooftops in the letter and certainly not threatening the ET claim at this stage.

[Kirei]

Thank you, it was the DDA when I graduated so I need to read up on the new law. If anyone else has any advice or thoughts please, it all helps. I have a wife and baby and I think I'll lose them if I can't provide for them. I would even be happy to accept the dismissal if they'd give me a good reference. Do you think this is something I shuold mention in the appeal? I'm a bit loathed to as it sounds like I'm "admitting guilt"?

[Kirei]

I also have another question. They are asking for money back for me taking too much holiday, but some of the holiday was taken when I told them I was having a hard time with my panic attacks and they told me to use holiday. I want to know if I should mention this in the appeal - maybe it's relevant because they weren't acknowledging I was ill? And also whether I can ask to not repay that money. This was 2 months ago, I didn't complain about it at the time, I just went along with what they said because I was under a lot of stress.

[madari]

Hi

 

Google : `The drinking employee`.........by jonathan goodliffe.

 

There are case laws relating to your question within the above mentioned article [which may have answers to your original question.]

[Kirei]

Thank you! Can anyone help with my question about what to put in an appeal letter? Do I just put I want to appeal or write out all the info on why?

[madari]

Hi

 

Keep your letter of appeal brief and to the point.

 

You do not need to specify grounds of appeal in your letter unless stated in your terms of employment ..ie staff handbook.

 

You are simply appealing against the decision to dismiss.

 

Your grounds of appeal will be those that will be argued,discussed & recorded at the appeal hearing itself.

 

Good luck

[Kirei]

So you just say I wish to appeal and that's it? Ah, ok then, thanks. But isn't it best to tell them so they can think about it before the appeal date?

[elche]

So you just say I wish to appeal and that's it?

 

No, I don't think this is all you should do. You should set out the grounds of your appeal, because the House of Lords has, "... unequivocally affirmed that in determining whether the employer has acted fairly in relying upon the reason for his dismissal, the employment tribunal should take account of evidence which emerges in the course of an internal appeal." See Lord Bridge's comments in West Midlands Co-operative Society Ltd v Tipton [1986] 1 All ER 513, [1986]

 

Further more it appears that evidence raised at internal appeal that invalidates the original reason to dismiss must be taken into account by the employer, and in certain circumstances an appeal can in effect become a re-hearing and a re-assessment of the situation see for example Monie v Coral Racing (1979)

 

But isn't it best to tell them so they can think about it before the appeal date?

 

Thus yes I think you should outline in your letter at least the basics of your grounds of appeal. Just stating, "I want to appeal" alone will not suffice you should explain the basics of why you are appealing.

 

Che

[Kirei]

Ah thank you so, I wish to appeal on the grounds that;

X, Y, Z

 

and then in the hearing go into more details?

Or I wish to appeal on the grounds that

X, Y, Z

 

And then explain why I feel I can appeal on these grounds?

[lbruk]

I didn't think alcoholism was covered by the Equality act? Only potential illnesses that come from the alcohol dependency. So like liver disease would be covered as it was caused by alcohol dependency. But the actual addiction wouldn't?

[madari]

Hi

 

I personally would just write in the appealletter words to the effect....you are appealing their decision to dismiss briefly explaining why you dont agree with it.

 

By stating the grounds you will basically be narrowing down and weakening your case against dismissal before it has even been heard.

 

The above is my tried and tested method & opinion [the final choice is yours of course]

 

 

Good luck

[Kirei]

Thank you, and Ibruk I have depression which I have had for about 10 years, which IS covered and the alcoholism is a result of it.

Madari, sorry for being thick but how do you mean say I'm appealing and the reasons without stating the grounds?

The main things I want to appeal are that they did not consider my mitigating circumstances, they dealt with me like any random person who got drunk for a laugh and I also want to mention about the holiday pay. can anyone advise regarding this, I'll repost it. Thanks, I want to get this right. Is it also worth saying I disagree I was a danger to myself or others, is there anything I can use to back this up?

Also this is the first time I have been drunk at work, and is the result of a one off external stressor. Is this something I should push?

 

I also have another question. They are asking for money back for me taking too much holiday, but some of the holiday was taken when I told them I was having a hard time with my panic attacks and they told me to use holiday. I want to know if I should mention this in the appeal - maybe it's relevant because they weren't acknowledging I was ill? And also whether I can ask to not repay that money. This was 2 months ago, I didn't complain about it at the time, I just went along with what they said because I was under a lot of stress.

[lbruk]

People under stress will look for advice where they can get it. In my humble opinion if you are stressed and suffering depression and someone says something that you think will help you, then you do tend to follow that advice, even if in the long term it is a detriment to your self. I know suffering from depression myself that sometimes you have trouble getting through the next few hours without even thinking about the next few weeks/months.

 

I would appeal it, I would state that you were suffering from an illness that your direct manager was aware of and they coerced you into something that you didn't want to do, even though short term it helped you, long term it didn't and only helped your manager.

[madari]

I would be inclined to not mention anything in the appeal letter, but instead let it all come out at the appeal hearing,

 

If it helps make a written statement[typed] and produce it at the appeal hearing [make sure that you keep a copy]

 

If they press you then take a break or ask to postpone the meeting so that you can gather your thoughts.