Mr H Clark v R&R Ice Cream Limited — 2023

Mr H Clark was employed by R&R Ice Cream Limited from 1 November 2004 and had previously been the subject of disciplinary action in 2020 concerning alcohol at work, which resulted in a final written warning and eight weeks' unpaid leave. The tribunal recorded that health and safety was critical at the Bodmin factory and that the dismissal decision arose from concerns that Mr Clark had been under the influence of alcohol at work on 19 April 2022.

The tribunal found that on 19 April 2022 several colleagues observed matters said to indicate intoxication, including a bloodshot or red eye, a mint smell, puffy eyes, irritability, slurred speech, swaying, and repeated trips to Mr Clark's car and smoking area. Mr Higman suspended Mr Clark after speaking to witnesses, and the investigation later considered witness statements and CCTV footage. The tribunal noted that no breath test was carried out and Mr Higman did not search Mr Clark's vehicle or pockets, but it accepted the Respondent's evidence that no tests were available on site and that the policy did not require a test.

At the disciplinary stage and on appeal, the Respondent relied on witness evidence, CCTV, and the policy's reference to intoxication and health and safety matters as misconduct or gross misconduct. The appeal hearing considered further points raised by Mr Clark, including his explanation that a freeze spray or other non-alcohol causes accounted for the smell and appearance, and the appeal chair reviewed CCTV and spoke to further witnesses. The tribunal rejected the allegation that the Respondent was trying to reduce staff numbers and found no credible evidence of an ulterior motive.

Applying section 98 ERA 1996, Burchell, and the range of reasonable responses test, the tribunal held that the Respondent genuinely believed Mr Clark was under the influence of alcohol at work, had reasonable grounds for that belief, and carried out a reasonable investigation overall, including through the appeal process. It concluded that the dismissal was fair and that dismissal fell within the band of reasonable responses, so the unfair dismissal claim was dismissed.