Sinclair v Wandsworth Council

Factual and Procedural Background

The Claimant was employed by the Respondent from 2001 to 2006 as a Business Support Assistant. In January 2006, the Claimant was observed drinking alcohol while on duty, which led to an investigation and a disciplinary hearing resulting in a final written warning. The Claimant admitted to having a drink problem and was referred to the Respondent's Occupational Health Service (OHS), which advised specialist help, although the Claimant initially preferred to manage the issue himself.

In April 2006, the Claimant was sent home unfit for work due to alcohol and was suspended pending investigation. A disciplinary hearing in May 2006 resulted in dismissal for misconduct related to being unfit for work through alcohol. The Claimant appealed, but the dismissal was upheld in September 2006.

The Respondent had both a written disciplinary procedure and an alcohol policy, which became central to the fairness assessment of the dismissal. The Employment Tribunal at London South found the dismissal unfair by a majority, primarily due to the Respondent's failure to properly apply its alcohol policy, including not informing the Claimant of the policy and not clearly explaining the conditions for suspending disciplinary action.

The Tribunal reduced the compensation awards by 25% for contributory conduct and limited the period of future loss compensation to four weeks. Both parties appealed aspects of the Tribunal's decision: the Claimant challenged the limitation and reduction, while the Respondent sought to overturn the unfair dismissal finding or increase the reduction.

Legal Issues Presented

1. Whether the dismissal was fair, particularly in light of the employer's failure to comply with its own alcohol policy and disciplinary procedures.
2. Whether the Employment Tribunal erred in limiting the period of compensatory award for future loss to four weeks.
3. Whether the Tribunal correctly applied the law in reducing compensation by 25% for the Claimant's contributory conduct.
4. Whether the Respondent's cross-appeal should succeed in overturning the unfair dismissal finding or increasing the reduction percentage.

Arguments of the Parties

Appellant's Arguments

• The Claimant contended that the limitation of future loss compensation to four weeks was inadequately reasoned and that the Tribunal failed to properly explain the basis for this period.
• The Claimant argued the 25% reduction for contributory conduct was unwarranted, asserting that any failure to engage with treatment was uncertain and not blameworthy, citing that alcoholism is an illness and should not be considered contributory conduct.
• The Claimant submitted that the Tribunal erred in accepting the Respondent's failure to inform him of the alcohol policy and the conditions for suspending disciplinary action as grounds for unfair dismissal.

Respondent's Arguments

• The Respondent argued that the Tribunal majority erred in law by substituting their own judgment for the employer's discretion under the alcohol policy, which allowed the employer to decide whether to suspend disciplinary action.
• The Respondent contended that any procedural irregularities were cured by the appeal process, which fully reconsidered the dismissal and the Claimant's engagement with treatment.
• On contributory conduct, the Respondent asserted the Tribunal wrongly excluded serious breaches of disciplinary rules related to drinking incidents and misleading explanations, based on a submission that alcoholism could not be contributory conduct.
• The Respondent sought to increase the reduction percentage for contributory conduct beyond 25%, arguing the Tribunal misapplied the law in its assessment.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court began by affirming the Employment Tribunal's correct identification of the dismissal as a "conduct" dismissal under s.98 of the Employment Rights Act 1996. The Tribunal found a genuine belief in misconduct by the adjudicating officer, supported by a full investigation and within the reasonable range of employer sanctions.

The majority found unfair dismissal due to the employer's failure to adhere to its own alcohol policy: specifically, not informing the Claimant of the policy's terms and not clearly explaining that disciplinary action would only be suspended if the Claimant actively engaged in treatment. The Court upheld this finding, rejecting the Respondent's argument that the Tribunal impermissibly substituted its judgment for the employer's discretion under the policy.

Regarding the appeal hearing, the Court concluded that the appeal did not cure the procedural deficiencies identified by the majority because the appeal officer confined his consideration to whether the original dismissal was fair and did not exercise his full discretion to reverse the dismissal based on post-dismissal treatment engagement.

On the limitation of the compensatory award period, the Court found the Tribunal had adequately reasoned that dismissal would have followed after four weeks even if the policy had been properly applied, based on the Claimant's failure to engage with treatment.

Concerning contributory conduct, the Court rejected the Claimant's argument that alcoholism could not be contributory conduct and held that the Tribunal erred in law by accepting that submission. The Court agreed with the Respondent that serious breaches of disciplinary rules and misleading explanations should have been taken into account in assessing contribution.

However, the Court declined to substitute its own assessment of the degree of contribution, instead remitting the question of whether the reduction should exceed 25% to a reconstituted Employment Tribunal for further consideration.

Holding and Implications

The Court DISMISSED the Claimant's appeal against the finding of unfair dismissal, the limitation of the compensatory award period, and the 25% reduction for contributory conduct.

The Court DISMISSED IN PART the Respondent's cross-appeal against the unfair dismissal finding but ALLOWED the cross-appeal to the limited extent that the Tribunal erred in law by applying a 25% reduction without properly considering all relevant contributory conduct.

The matter of the appropriate degree of contribution beyond 25% is remitted to an Employment Tribunal of the same constitution for reconsideration. The remitted hearing is to be conducted with directions as to the scope of submissions, but the conduct of that hearing is at the Tribunal's discretion.

No new legal precedent was established beyond clarification of the application of existing principles concerning employer discretion, procedural fairness, and contributory conduct in unfair dismissal cases.