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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 50156
Experience:  Qualified Employment Solicitor
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My fiance is working company in glasgow, he has been

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Hi my fiance is working for a company in glasgow, he has been working there for 3 years.
In December he got admited to a rehab clinic for a month and then had 3 months off work to help his recovery. since june he has went back to having a few beers at the weekends and his HR dept and manager knew about this, and has been able to control it mostly. last weekend he had a little too much too drink and went into work on the monday extremely hungover, he smelled of stale drink and got sent home. he then got suspended on full pay the letter said he came in under the influence of alcohol, he had an investigation meeting last thursday to get his side of things and he told them he wasnt under the influence he was just hungover. can this lead to dismissal?
Hello, my name is***** am a solicitor on this site and it is my pleasure to assist you with your question today. Is he facing a formal disciplinary s a result?
Customer: replied 2 years ago.

He is waiting to hear if it's going to a formal disciplinary. I was looking to find out if it can result in dismissal from a disciplinary even though he had plenty of sleep before his work he was hungover and smelled of stale drink

It could potentially lead to dismissal, depending on what the investigation finds and what the employer believes happened. As far as the law stands, misconduct is a common reason for taking disciplinary action and it is also a potentially fair reason for dismissal under the Employment Rights Act 1996. It could be a single act of serious misconduct or a series of less serious acts over a period of time. In order to justify that dismissal on grounds of misconduct was fair, the law requires that the employer:· Conducts a reasonable investigation;· Follows a fair disciplinary procedure;· Has reasonable grounds for believing the employee was guilty; and· Show that dismissal was a decision that a reasonable employer would have taken in the circumstances. In addition, the employer is expected to follow the ACAS Code of Practice on disciplinary and grievance procedures. Altogether, it means that a disciplinary procedure should be conducted as follows: 1. Investigation - a reasonable investigation is needed. What is reasonable depends entirely on the circumstances and especially the nature and seriousness of the allegations. The more serious these are, the more detailed the investigation needs to be. 2. Disciplinary hearing - if the investigation provides sufficient evidence of misconduct, the employee may be invited to attend a formal disciplinary hearing. They must be given prior notice of the hearing, including details of the allegations, allowing them time to prepare. They have the legal right to be accompanied at the hearing but only by a trade union representative or a colleague. 3. Decision and penalty - following the disciplinary, if the employer holds a genuine belief that the employee was guilty, then they can go ahead and dismiss. When deciding on whether dismissal is appropriate, the employer should consider the nature and seriousness of the offence and the employee's length of service and disciplinary record. They also need to act with a degree of consistency if other employees have previously been disciplined over similar issues. Unless the offence was one of gross misconduct, ACAS recommends that the employee should be issued with a written warning. In summary, an employer is not expected to prove that the alleged misconduct had definitely occurred. Disciplinary action will be fair if the employer can show that it had conducted a reasonable investigation, followed a fair procedure and held a genuine belief that the employee was guilty. Finally, it must show that the penalty was a reasonable action to take in the circumstances and one that a reasonable employer would have taken. If there are any doubts or evidence that the above requirements have not been satisfied, an appeal can be submitted to the employer straight after the disciplinary outcome is communicated. If the appeal is rejected a claim for unfair dismissal can be made in the employment tribunal. The time limit to claim is 3 months from the date of dismissal and the claimant needs to have at least 2 years' continuous service with that employer. I trust this has answered your query. I would be grateful if you could please take a second to leave a positive rating (selecting 3, 4 or 5 starts at the top of the page). If for any reason you are unhappy with my response or if you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you
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Customer: replied 2 years ago.

Thanks. Would they not have had to take an alcohol test on the day to prove he was under the influence which he wasn't. Surely they would need this as proof?

No they do not. This is not a criminal court. An employer does not need concrete proof. They only need a reasonable investigation which could be evidence provided by others that he smelt of alcohol or was for example behaving oddly as if he was under the influence