Ms Malgorzata Krolik v Youngs Seafood Limited — 2021

Ms Krolik worked for Youngs Seafood at its Livingston site as a Key Operative and team leader in the High Care Salmon Department. After an employee briefing on 17 August 2020 about production-line changes and holiday arrangements, she objected loudly, left the briefing, and later spoke with management through a Polish interpreter. During the shift colleagues reported smelling alcohol, and the claimant said she had drunk three beers the previous night or earlier that morning. She was suspended, investigated, dismissed for gross misconduct, and her appeal was rejected.

Applying section 98 ERA 1996 and the Burchell approach, the tribunal accepted that the respondent genuinely believed she had been under the influence of alcohol and that there were reasonable grounds for that belief. It held, however, that the investigation was not reasonable. No probing questions were asked about why she interrupted the briefing, the possibility that she was upset about the holiday changes was not explored, her mention of menopause and emotional impact was not followed up, and no occupational health referral was considered despite the respondent's own Substance Misuse Policy referring to support for dependency. The tribunal also found that the respondent had no reasonable basis for concluding that she was being untruthful about alcohol dependency or that her account of drinking was inconsistent, and it had not investigated how much alcohol she had consumed or what effect it had on her at work.

The tribunal held that dismissal fell outside the band of reasonable responses and was unfair. It found contributory fault because the claimant had attended work smelling of alcohol and had not sought employer assistance earlier, but reduced the compensatory award by only 25% and made no reduction to the basic award. It rejected a Polkey reduction, saying it was not satisfied she would have been dismissed in any event if the respondent had followed its own policy and carried out a reasonable investigation. Reinstatement was refused because, although practicable, the tribunal did not consider it just to order it in light of the claimant's contribution to the dismissal. The final award was a basic award of £4,841.90 and a compensatory award of £2,260.54, with a prescribed element of £1,648.15 and a total award of £7,102.44.