Under French employment law, the issue of alcohol consumption at the workplace is taken very seriously as it could entail significant risks, not only for the employee and his/her colleagues, but also for the company in general (loss of productivity, reputational risks, etc.). Moreover, the employer is bound by a duty of care towards its employees and is required by the French Labour code to prevent employees under the influence of alcohol from working on the company’s premises.

In this context, case law permits employers to have recourse to breathalyzer devices in orders to control the alcohol blood level of their employees, particularly where this is justified by the nature of the position held by the employees and provided that it is implemented under the company’s internal regulations, which must be implemented pursuant to a specific procedure and provide for means by which the employees can challenge the results of the test. In addition, such testing is, in any event, restricted to situations in which a state of inebriation could expose people and property to danger.

Against this framework, would an employer be entitled to invoke the results of an alcohol test if the internal regulations providing for such tests have not been implemented according to the procedure relating to the introduction of internal regulations?

In the present case (decision of the Supreme Court dated 4th November 2015), a machine operator working at night in a glass factory was tested for alcohol following the discovery of empty bottles of alcohol in the employees’ locker room. The results of such testing proved to be positive and the employee was 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 (which was agreed by the employee and carried out in the presence of a witness), he lodged a claim before the employment court for unfair dismissal on the basis that the provisions of the internal regulations which provided for such testing were not applicable since the procedure necessary for their entry into force had not been followed.

The Supreme Court upheld the findings of the Court of Appeal and held that the provisions of the internal regulations with respect to the possibility of testing the employees for alcohol could not be enforced against the employee as the internal regulations had not been introduced in compliance with the applicable procedure in this respect. As a result, the dismissal, which was based exclusively on the results of such testing was necessarily deemed as unfair.

Case law generally considers that the employer may not enforce internal regulations against employees if the employer failed to introduce such regulations as per the legal procedure. Therefore, in the event an employer contemplates implementing alcohol testing, it is necessary to provide expressly for such a possibility in the company’s internal regulations (subject to compliance with the conditions allowing the recourse to alcohol testing) but also not to forget the administrative formalities necessary for the enforcement of such internal regulations.

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