Focus on SMEs: Consider hard line on hungover staff

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PROBLEM

An employee phoned one morning saying that he was sick and could not come into work. I know he was drinking heavily at an inner-city bar the previous night and I think he was just hungover. What can I do about it?

SOLUTION

Employment lawyer Craig Mundy-Smith of Bartlett Law says that the answer depends on your business' alcohol policy.

Some employers, such as airlines, have alcohol policies that class drinking in the eight hours preceding work as serious misconduct. Employers whose employees work in safety-sensitive areas, or around hazardous materials, should consider introducing such policies.

In other situations, an alcohol policy might state that reporting to work under the influence of alcohol is serious misconduct. A hungover employee is still influenced by the alcohol in their system. They should not be at work in that state.

An employer must comply with its policy and investigate if the employee falls within the relevant definition. But what if you do not have a policy?

Parliament did not include a definition of "sick" in the Holidays Act 2003. When the Court of Appeal was last asked to define the meaning of "sick", it held that "sick" means "unfitness for health reasons of any nature and however caused".

Following this reasoning, self-induced sickness such as a hangover would provide a legitimate reason for an employee to claim sick leave. Your employee may even admit to you they are hungover, without comeback. What they cannot do is say they are ill "with the flu" or "suffering from a stomach bug".

Lying to one's employer is an act of misconduct, which could form the basis for disciplinary action and might even justify dismissal.

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