PCV driver dismissed after failing breath tests: flawed appeal but dismissal largely upheld

A flawed appeal, but a fair outcome overall

This case shows how a procedurally flawed appeal can render a dismissal unfair, even when the underlying conduct is serious. The claimant, a PCV driver with five years' service, failed three breath alcohol tests at work. She argued the positive results were caused by Listerine mouthwash, but a control test showed its effect dissipated within 10 minutes. The tribunal found she had consumed alcohol the previous evening, making the dismissal substantively reasonable.

What went wrong for the employer

The disciplinary and investigation stages were fair. However, the appeal manager did not keep an open mind, which made the dismissal procedurally unfair. The tribunal noted that a fair appeal could have cured earlier defects, but the manager's closed approach meant the process fell short of the ACAS Code. This failure led to a 10% uplift on the compensatory award.

Why the compensation was so low

Despite finding unfair dismissal, the tribunal applied two significant reductions. First, a 75% Polkey reduction because the claimant would likely have been dismissed even with a fair appeal. Second, a 75% reduction for contributory conduct, as the claimant's alcohol consumption was blameworthy. The basic award was also reduced by 75%. The final award of £3,681.52 reflects that while the process was flawed, the outcome was almost certainly justified.

What this means for similar claims

Employees who fail workplace alcohol tests should not assume dismissal is automatically unfair if the process has errors. Tribunals will look at whether the employee's own conduct contributed to the dismissal and whether a fair process would have changed the result. For employers, the lesson is clear: ensure appeal hearings are genuinely impartial, or risk a finding of unfair dismissal – even if the compensation is minimal.