Q&A Can drunk employee I sacked sue me for cutting short his fixed term contract?

Q:        I recently sacked an employee on a fixed term contract for gross misconduct because he was found drunk and asleep on watch whilst my business premises were being burgled. Now he is threatening to sue me for unfair dismissal and breach of his fixed term contract. Surely, he cannot do this as he failed to do his job properly, resulting in me losing stock for which he was responsible?

A:        If the employee has been with you for more than two years, he may have grounds for bringing a case against you for unfair dismissal. If he has been with you for less than two years then he cannot, unless he can prove the sacking was discriminatory in some way or he can prove that the sacking was for an ‘Automatically Unfair’ reason such as whistleblowing. Regarding breach of his fixed term contract, he could possibly claim for lost income due to having his contract cut short.

All that said, it does depend on what is written in his employment contract. It is always advisable to give employees a very clear indication in their contract of employment or staff handbook as to what type of behaviour would constitute gross misconduct. Specifying such behaviour in advance will help to protect you in the event of an incident such as you describe.

Generally gross misconduct behaviour would include intoxication (whether from drink or drugs), fighting or other physical abuse, indecent behaviour, theft, dishonesty, sabotage, serious breaches of health and safety rules, offensive behaviour (such as discrimination, harassment, bullying, abuse and violence) and gross insubordination.

You should however be cautious when dealing with an employee under the influence of alcohol or drugs, as if the employee is an alcoholic or drug addict, the matter should be dealt with as a capability issue in the first instance, and not as gross misconduct.

Seeking legal advice should be your priority now. Reviewing your employment contracts should perhaps come next.

This question has been answered by James Denton, a Solicitor with GHP Legal.  If you would like to speak to someone about this or any other legal matter, please visit our website www.ghplegal.com and use the contact us form, or call us on: Wrexham 01978 291456, Llangollen 01978 860313, Oswestry 01691 659194 

James Denton

James Denton

Solicitor

Solicitor in our Civil Litigation team in the Oswestry and Wrexham offices.