Employee who was 'hammered' at work event was unfairly dismissed, tribunal finds

2 Mar 2018 By Marianne Calnan

Judge concludes employer's investigative procedure was 'defective', with no chance to respond to allegations

A former cancer charity employee who was intoxicated at a work event, according to her employer, was unfairly dismissed, an employment tribunal has ruled.

In a tribunal judgment published on 26 February 2018, CALLplus’ investigative procedures into Mrs Frodsham’s conduct were found to be defective, resulting in “unsubstantiated” conclusions. 

There was “no investigation”, and many specifics of the charity’s evidence against Frodsham were “not actually put to her to defend or explain”, it stated.

Frodsham worked for CALLplus, an organisation supporting cancer sufferers and their families, for 16 years until her dismissal for gross misconduct for being under the influence of alcohol at work on 10 February 2017. 

At three hearings held in August and September 2017 and on 1 December 2017, Manchester Employment Tribunal heard that the event in question took place on 20 January 2017. 

Before a work event at the Central Manchester Hospital, Frodsham had received some bad news and had drunk several alcoholic drinks. The event was attended by other organisations with which CALLplus was familiar, and some of its clients. 

The tribunal heard it was regular practice for Frodsham to go to co-worker Rebecca Turner’s house before work events. Turner told the tribunal that Frodsham was “hammered” when she arrived there, and had also drunk “an awful lot” of alcohol the previous night.

At the event, she behaved "erratically", introducing herself to people that she already knew, failing to remember the names of guests, disappearing to the ladies’ toilets, mimicking attendees and whispering over one of the speakers, according to Turner’s evidence. 

When the event finished, Turner drove to her home with Frodsham as a passenger, and then allowed Frodsham to continue her journey home by driving her own car. Frodsham later told the tribunal that had she been as heavily intoxicated as Turner said she was, Turner would not have let her drive.

Turner informed CALLplus’ chief executive, Karen Mercer, of the incident on 6 February 2017, having delayed it until then as it made her feel “uncomfortable” because of her friendship with Frodsham. 

CALLplus then suspended Frodsham pending gross misconduct allegations that she had failed to carry out her role properly, effectively or otherwise while under the influence of alcohol, and because she had breached the organisation’s policy by putting the charity’s reputation at risk.

The judge ruled, however, that CALLplus’ evidence surrounding this admission was unreliable because Mercer’s own witness statement had stated in error that Frodsham’s misconduct had been raised with her already in November 2016. 

Turner received a phone call from Frodsham during her suspension. At this time, Frodsham did not know that Turner had informed on her. According to Turner, Frodsham asked Turner to meet, then asked her to tell CALLplus that she had not been drunk at the event. 

Turner informed Mercer of Frodsham’s phone call during this period.

A disciplinary meeting with Frodsham followed on 10 February 2017, during which Frodsham admitted that she had not read her entire suspension letter and had therefore failed to realise that she was not to contact staff members. 

The organisation’s disciplinary panel considered that contacting a witness to change evidence amounted to gross misconduct and had “no alternative” but to dismiss Frodsham.

As there was no investigation into other matters aside from Turner’s allegations, her conduct during the event itself was never put to Frodsham to address fully.

No further investigation into Frodsham’s behaviour took place. CALLplus’ outsourced HR adviser, Ms Cummings of Direct Law and Personnel, explained that this was because of the small size of the charity and the fact that the organisation did not want to reveal Turner’s identity as the informant. 

Frodsham appealed the decision on the grounds that she had not been supplied with evidence of the allegations, and that she had worked for CALLplus for 16 years and never been subject to a disciplinary procedure 

Demi Shaw of Direct Law and Personnel heard Frodsham’s appeal, at which Frodsham pointed out that, if she had been as drunk as Turner alleged, she would be unable to remember the events of the day, which she could. Her appeal failed and the dismissal was upheld on the basis that Turner’s evidence was convincing.

Allowing Frodsham’s unfair dismissal claim, Judge Feeney said that the law in relation to dismissal requires employees to know the nature of allegations against them and have an opportunity to state their case. The disciplinary panel should act in good faith, he added, finding that CALLplus did not adopt a fair disciplinary procedure. 

Feeney concluded that Frodsham had had several drinks, had slept badly and received bad news that had affected her demeanour and behaviour. “This is not conduct that would have led to her dismissal by any means, particularly given her 16 years’ service,” he said.

Feeney also ruled that there should be no deduction to Frodsham’s award after the liability hearing as CALLplus lacked sufficient evidence that her behaviour at the event was down to drunkenness, or that her behaviour risked the charity’s reputation. 

He said a Polkey deduction of 50 per cent of the award should be made, however, because there was a chance Frodsham may have been dismissed even if CALLplus had carried out the appropriate enquiries. 

CALLplus and Frodsham have been requested to contact the tribunal within 14 days of the judgment’s publication regarding whether a remedy hearing will be required.

CALLplus did not respond to People Management’s request for comment.

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