The legal background

The issue of alcohol consumption in the workplace is a common concern for any employer wishing to protect its employees’ health and safety at work. From a legal perspective, this can result in potential risks in terms of criminal and civil liability, particularly with regard to the employer’s duty of care toward its employees.

In this context, one aspect of the management of alcohol-related issues arising in the workplace is the implementation of alcohol testing on employees. In this respect, French case law has allowed the use of such testing in specific circumstances (where this is justified by the nature of the position held by the employee and provided that it is implemented under the company’s internal regulations, which must provide for means by which the employees can challenge the results of the test).

However, based on the provision of the labor code stating that the internal regulations cannot impose restrictions on the employees’ individual and collective freedom which are not justified by the nature of the task to be performed and proportional to the purpose sought, the ability to conduct alcohol tests has been restricted to situations in which a state of inebriation could expose people and property to danger.

The case in question

In situations where such danger exists, what happens if the employer conducts random testing when the internal regulations only stated that employees could be required to submit to a test if their condition constitutes a danger for their own safety and that of their colleagues with a view to putting an immediate end to such situation?

In a recent decision of the Supreme Court dated 2 July 2014, an employee was tested positive for alcohol during a collective random test implemented by his employer and was thus subsequently dismissed for gross misconduct. Although the employee did not deny that he was under the influence of alcohol at the time of the test, he brought a claim before the employment court for unfair dismissal arguing that the employer did not comply with the provisions of the internal regulations.

The decision of the Supreme Court

Both the judges of the Court of Appeal and the Supreme Court found in favor of the employee and considered that the terms of the internal regulations implied that the alcohol testing could only be applied on employees presenting an apparent state of inebriation, which was not established in the present case (the Court of Appeal notably observed that the fact that the testing was conducted on 18 employees belonging to the same team tended to demonstrate the absence of such state). As a result the judges dismissed the test findings as a justification for the dismissal and consequently ruled that the dismissal was unfair.

This ruling should not come as a surprise and confirms the case law tendency to interpret strictly the terms of the internal regulations. Therefore, in the event an employer contemplates implementing random alcohol testing, it is necessary to provide expressly for such a possibility in the company’s internal regulations, together with safeguards for employees and conditions for using such testing so as to avoid falling under the prohibition of unjustified and non-proportionate restrictions on the employees’ individual and collective freedom. The employer should also abide rigorously by the terms of the internal regulations if it wishes to retain the possibility of disciplining employees who test positively for alcohol.

 

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