what constitutes misconduct for new JSA claim - alcohol problem ?

client now accepts alcohol issues contributed to performance in workplace, ie some fairly trivial mistakes but nothing major. Client lost the job following a disciplinary hearing (with no representation) - was accused of attending work under the influence but denies this allegation….  anyway made a new JSA claim - SANCTIONED for 13 weeks straight away due to misconduct…anyone aware of any helpful (or even unhelpful) caselaw on the subject ?

I may be wrong here but i was under the impression that being fired due to misconduct was one happenstance that allowas an immediate sanction

Whether the misconduct is fair or not is something to perhaps be taken up with the employer in question (ie unfair dismissal action against former employer) as Jobcentre Plus will insist that it isnt their problem.

Difficult though, now that there is a fee for Employment tribunals…

Any thoughts on the original post would be appreciated.

Thoughts on the original post…...

Being under the influence of alcohol at work will be grounds for disciplinary action - even with the most progressive employer (though I suppose a truely progressive employer would attempt to offer the employee help with their alcohol problems) but…

I am not sure how one resolves the obvious contradiction in the o/p. Client denies attending work under the influence whilst at the same time admits to their alcohol misuse being a contributory factor to mistakes made at work - how can this not be as a result of the alcohol misuse then?

In terms of JSA and the sanction, cannot think of any sanction cases relating directly to alcohol or substance misuse. There may be some mileage in approaching the issue as an illness - i.e. so long as proper procedures are followed, an employer can legitimately dismiss an employee where their level of sickness is at a level that the business cannot sustain. But this would not constitute misconduct.

So does the client have (or could they obtain) a diagnosis of alcohol dependency? Need to be clear this is something different to a diagnosis of alcohol misuse, as it (crucially) confirms the misuse is not within the person’s control. Could then potentially be argued that the behaviour was something other than true misconduct. I think the important thing here is that the client has a right of appeal and whilst the DWP will go with whatever the employer has said (and the employer is clearly not going to admit to just wanting any excuse to sack the bloke) any tribunal is not bound by what the employer gives as the reason for dismissal. But also worth bearing in mind that if the tribunal finds misconduct to be the cause, this does automatically attract a ‘higher level’ sanction - and the minimum is 13 weeks.

But ta diagnosis of alcohol dependency might in itself might create problems - if the client does have alcohol dependency, could he properly speaking be said to be available for work? What employer will take him on and put the safety of other employees at risk? At a minimum I think it would be an issue if he wasn’t receiving treatment.

But if he does now own to the problem and is prepared to own to it to his GP, would not an ESA claim be easier? Can be backdated and won’t attract a sanction. Though I’d still pursue the appeal so that if he did reclaim JSA in the future, the sanction was not unspent.

Hi Morti

No caselaw springs to mind but, as you may have seen already, the subject is briefly covered in the DMG with some room for argument:

34282 If a claimant was sacked from their job for being under the influence of drugs or alcohol then a sanction should normally apply. If however they lost their job because they were in treatment, the DM would normally consider this to be good reason and a sanction should not apply.
Note: Each case would have to be judged separately on its own merits.

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/410844/dmgch34.pdf

cheers

Mark

thanks for your thoughts guys I appreciate it…- I guess I didn’t automatically arrive at the conclusion that an employed person who accepts a problem with alcohol ought to be considered or treated as a person “under the influence” whilst in their workplace.

This particular client describes their performance in work as being affected by the typical symptoms of alcohol misuse ie, a bit anxious, jumpiness, slightly shaky, sweating etc…..which by his own submission may have led to some minor mistakes…also points out that there was never any consumption of alcohol in the workplace or immediately before attending the workplace..it was always “the morning after”

I think most people would believe that a person “under the influence” is a person who is intoxicated, I’m just not convinced this client ought to be treated as such under these circumstances.

For the misconduct decision the employer has relied quite heavily on the “smell of alcohol” from the clients breath…but does that constitute being “under the influence”...? or is that simply a symptom of the night before ??

I’ll let the FtT decide and confirm the outcome…....any other further comments welcome of course..

We’ve produced some brief information related to misconduct and sanctions on our Ask CPAG Online service, including pointers to relevant guidance.

See On what grounds can a ‘high level’ JSA sanction be challenged?

As past caring notes, might be a difficult one to argue as described above, with a chick of light insofar as this from the guidance:

Note that DWP decision makers should not impose a sanction for misconduct if there is evidence from a medically qualified person that, at the time of the alleged misconduct, you were suffering from a mental illness and not responsible for the actions in question.

I’m pretty sure that alcohol dependency is categorised under WHO classifications as a mental disorder.

Paul_Treloar_CPAG - 31 March 2015 09:50 AM

I’m pretty sure that alcohol dependency is categorised under WHO classifications as a mental disorder.

It is - see both R/DLA 6/06 and JG v SSWP (ESA) [2013] UKUT 37 (AAC) (reported as [2013] AACR 23) - sorry, don’t know how to link to these, but both are on the UT website.

@ Morti - I’m not in any way sympathetic to your client’s employer - had I been his union rep, I’d have stuck it to them. I’m just trying to say that I think it’s fairly pointless trying to argue points that are simply not sustainable, particularly at tribunal. Part of the reason for this is that you risk the tribunal becoming unsympathetic to entirely reasonable points if you try to argue points which fly in the face of reason.

I haven’t done this job all my life. I started off in the print and in that time worked with a number of people with alcohol problems. The bloke with the most severe problems was also one of my best friends - and displayed exactly the same sort of symptoms as you describe for your client. He only kept his job because the rest of us covered for him - to the extent of taking it in turns to pass by his house and drag him into the shift on time. But it was absolutely clear that his ability to do his job was impacted on by his alcohol misuse. This is what I mean by being under the influence of alcohol - and I’m pretty confident it’s a definition that ETs would adopt. It is this point that I don’t think you should try to contest at FtT.

But for the reasons already suggested by others - particularly Paul - it does not necessarily equate to misconduct. In some ways, you could effectively treat the FtT like a re-run of the disciplinary hearing. And if the full facts were before that hearing and properly argued -

“Yes, I have an alcohol problem, I’ve had these stresses that have contributed to it….It crept up on me and my drinking increased without me realising I had a problem. I agree it’s affected my time-keeping and my performance, but I’ve never had a drink at work and I’ve never been inebriated at work. What you’ve smelled on my breath is drink from the night before and when you’ve seen me sweating and shaking, that’s alchol withdrawal. I want to keep my job and I don’t want to continue having a problem with alcohol. I have been to my GP, she says I have alcohol dependency and she has offered me the following treatement which I’m just about to start…...”

- then a decision to dismiss - in the absence of any previous offers of support from the employer - might well have been found to be unfair by an ET. Certainly would be very surprised if there were any finding of misconduct. The FtT is effectively going to be investigating the same facts and taking the same factors into account.

Here’s a link to R(DLA)6/06 rightsnet summary -

http://www.rightsnet.org.uk/welfare-rights/caselaw/item/Whether-effects-of-alcohol-consumption-are-relevant-in-determining-entitlem

and decision itself -

http://www.osscsc.gov.uk/aspx/view.aspx?id=1944

and here’s summary for [2013] UKUT 37 (AAC) -

http://www.rightsnet.org.uk/welfare-rights/caselaw/item/alcohol-dependence-and-points-for-physical-and-mental-disablement-under-the

and decision itself -

http://www.osscsc.gov.uk/Aspx/view.aspx?id=3672

benefitsadviser - 30 March 2015 01:44 PM

Difficult though, now that there is a fee for Employment tribunals…

Any thoughts on the original post would be appreciated.

 

There is fee remission available for Employment Tribunals.

If Unfair dismissal is alleged it’s important to ring ACAS on 08457 474747 to commence Early Conciliation as soon as possible as to file a claim you will require a certificate of early conciliation from them.

The FtT found that client was not guilty of misconduct under these circumstances and appeal allowed.

He was very critical of the former employer and in particular how they handled the situation - he was scathing of their lack of support under the circumstances…....

In conclusion he stated he was;

“not satisfied on the evidence before me that the circumstances of the termination of the appellants employment can be classified as misconduct within the meaning of the law”

a good outcome (for this dispute at least).....thanks to all who contributed to my initial post.