Supreme Court: end of zero tolerance to alcohol at work
Although the Labour Code bans employees from entering the workplace under the influence of alcohol, the Supreme Court in its recent judgment stated that not every breach of this duty is automatically a justified reason for dismissal. According to the court, employers have to consider the detected level of alcohol in the blood, but also the employee’s previous work discipline. The judgement sets a dangerous precedent that may be taken advantage of by employees.
In the case in question, an employee underwent a breath analysis upon entering the workplace, which detected 0.32‰ of alcohol. In a repeated measurement half an hour later, the level dropped to 0.23‰. A subsequent blood test measured 0.11‰ alcohol in the blood. The employer assessed this misconduct as a serious breach of duties and gave the employee notice of termination. The employee argued that he had not consumed any alcohol and challenged the validity of the termination in court.
The Supreme Court sided with the plaintiff and declared the termination invalid. The court considered the blood alcohol level to have been too low to have actually influenced the employee and based its opinion on the conclusions of an expert witness. The expert stated that influence by alcohol is only relevant where the blood alcohol level is at least 0.5 ‰, as a lower level only proves that alcohol was consumed but not that it influenced the individual. The court also challenged the results of the measurement by breathalyser, stating that a blood analysis was the only reliable test. The employee’s previous behaviour also worked in his favour, as he had worked for the employer without major problems for eighteen years. Thus, while the court concluded that the employee did indeed breach his duties, it classified the breach as less serious and not in itself a sufficient reason for giving notice of termination.
This benevolent approach of the Supreme Court is even more surprising considering that the employer did not penalise the breach with the strictest sanction available – immediate termination of employment – but terminated the employment by notice, which meant that the employee had two months of paid notice to look for a new job. Moreover, the employee was working at a steelworks, where the risk of injury is high.
The judgement is one in a series of rulings where the Supreme Court has sided with employees. Employees no longer have to be concerned when entering the workplace under the influence, knowing that it will not be easy for their employer to penalise them. For employers, it can only be recommended not to rely solely on breath analysers, and to have positive results confirmed by blood tests. Also, they have to act quickly, before the level of alcohol drops below 0.5 ‰. If the employer proceeds to terminate the employment, they should have other arguments ready to support the employee’s problematic past.