Our Employment Solicitor, Angharad Aspinall, looks at Lloyd's of London's controversial ban on alcohol during working hours.

The Lloyd's of London Executive Committee has introduced a ban on workers drinking alcohol during working hours. Any employee caught drinking alcohol during the hours of 9am and 5pm could be disciplined for gross misconduct. The ban has been met with outrage from workers obviously not keen to end the glory days of boozy lunches- seen as key to sealing contracts or deals. One comment even likened the ban to something out of George Orwell’s 1984.

But what is the legal position on drinking during working hours? Can you be dismissed for attending work under the influence, or incapable of carrying out your job through drink? Whilst generally it is agreed both are a serious matter it does not necessarily mean that immediate dismissal will follow.

The majority of the time ‘being under the influence of alcohol’ will feature as an example of gross misconduct in any disciplinary rule book. Safe to say, employers will almost always have a reason to commence disciplinary action. That is the easy bit and something that all tribunals expect will happen in circumstances where an employee rolls back to work a little worse for wear.

It is often the process that employers fall down on. It is particularly important that the employee be given the opportunity to explain themselves. There may be additional stressors which have caused the employee to consume alcohol during working hours when they would ordinarily not have. Some employees have successfully argued their dismissals are unfair because certain medical conditions give the appearance of drunkenness. Ultimately, if the employer assumes there is no reasonable explanation any resulting dismissal will most definitely be unfair.

Where drinking has been previously condoned- then this presents a problem. In such circumstances, a clear warning that further repeated conduct could result in dismissal is necessary. Reports on the leaked memo from Lloyds Bank indicate that almost half of disciplinary cases in the last two years at Lloyds were a result of alcohol related misconduct. Clearly Lloyds want to put an end to this, and so it follows that a clear message that such behaviour will no longer be tolerated stands them in good stead if considering disciplinary action for similar conduct the next time around.

A darker consideration to all of this is when drinking becomes excessive and develops into a problem. Does this mean the employer has additional obligations to the employee who has an alcohol problem? Alcoholism is expressly stated not to be a disability which would mean that an employer’s additional obligations under the discrimination legislation are not engaged. However, conditions which could constitute a disability which often arise from alcoholism, such as depression, can be a disability (providing the test is met).

Misconduct aside, if the employer suspects that the employee may have a drink problem and this is affecting their performance at work (either because their performance has suffered or they are taking frequent periods of sick leave), employers should consider dealing with the matter as a capability issue rather than misconduct. This would involve the employer obtaining a medical report to determine the prognosis, and whether there is the possibility of an improvement. The employer may decide to assist in rehabilitation but does not have to take this through to the end. Ultimately if the employer may decide enough is enough at which point dismissal may be the only option left.