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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 51165
Experience:  Qualified Solicitor
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I have recently been dismissed, the reason for this is that

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I have recently been dismissed, the reason for this is that I admitted to the company that I was alcohol dependant, in which they supported me by using the company's policy to be randomly breath tested, however, the company's policy states that the contract should be for 13 weeks and then to be review and extended, if necessary for a further 13 weeks (up to 12 months). However, my contract was amended and the 13 weeks was crossed out and replaced by 12 months, is this direct discrimination and/or unfair dismissal?

Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.

So how long have you actually worked for this employer and what reason did they provide for dismissing you?

Customer: replied 5 months ago.
I have worked for them for 19 years 6 months, with no occasions of any misconduct during this time. The reason for dismissal was 'gross misconduct', the reasons for this is/are: Admiited breach of a condition of your alcohol contract (agreement for treatment & rehabilitation) in that on Tuesday 16th January you provided a positive reading of your alcohol breath test contrary to the condition that you maintain total abstinence from alcohol/drugs

OK, thank you for your response. Leave it with me for now and I will review the relevant information and laws and get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not respond to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.

Many thanks for your patience. First of all this is not discrimination because alcohol dependency is not a disability and it is specifically excluded from such protection. Therefore, you cannot claim for discrimination here.

However, it would be potential unfair dismissal based on several factors. First of all, if your contract was amended without your consent and you were not informed that the relevant period was increased to 12 months, the the employer used that change to argue that you had breached your contract, it would clearly be unfair of them to do.

When considering gross misconduct, the employer should have also taken into account the effect of you having had a drink, on your work. For example, were you actually alleged to have been under the influence of alcohol in work? Did they dismiss because you had simply had as drink, despite it having no effect on your work. It would be difficult for them to justify it warranted dismissal, if you had drunk outside if work and were not drunk at work and it had no effect on your work.

They should have also considered your length of service and disciplinary record, which respectively were very long and clean.

There have been instances in the past when even those who are alleged to have been drunk in work, were deemed to have been unfairly dismissed:

In that case you will see the dismissal was unfair because the decision fell outside of the reasonable responses expected of the employer and I think there is a good argument that this was the case here too.

Please take a quick second to leave a positive rating for the service so far by selecting 3, 4 or 5 stars above. I can continue answering follow up questions and in particular can also discuss the options you have if the employer does not reverse their decision. There is no extra cost for this - leaving your rating now will not close the question and means we can still continue this discussion. Thank you

Customer: replied 5 months ago.
Many thanks for this. Another question, when I was asked what period I would like to be supported for I came up with 12 months, however, the company did not inform me that the policy was for a 13 week period to be reviewed and extended if necessary. So if I signed the contract that had the 13 week crossed out and 1 year handwritten above, does this mean I have consented even though the company did not make me aware of the policy, nor the length of the contract. Also, the reason I asked if I had been directly discriminated against was down to the length of the contract, every other colleague is placed on a 13 week contract, however, it appears that I have been treated less favourably due to my characteristic and was given a 12 month contract. Although I blew a 'positive' test this was still under the governments drink drive limit and also the company's policy which is the UK's drink drive limit

there is an argument you had consented to it, especially if you did not know what the shorter period was, so you were none the wiser. However, there is no discrimination because you do not have a protected characteristic as defined in law (gender, age, race, religion, disability, etc). This will mainly come down to the reasonableness of the decision to dismiss, that would be the key argument. Hope this clarifies?

Customer: replied 5 months ago.
Surely there is an argument that it could still be discrimination as the law states that you do not necessarily have to have a characteristic?

you certainly do need a protected characteristic for discrimination to apply. What you re referring to is likely just unequal treatment, which could be on any grounds, but there is no direct legal protection for that

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