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22 January 2020
Employees may drink a small glass of alcohol in the workplace, whether at after-work events or professional lunches or during festivities organised by the company. However, in some cases, employees may arrive at work intoxicated. The Court of Appeal was recently confronted with such a situation and had to consider under which conditions an employee's state of intoxication can justify their dismissal.(1)
This judgment highlights the preventive measures that employers can implement to avoid this situation and the means available to them when managing cases of intoxication at work.
In principle, the consumption of alcohol in the workplace constitutes a serious fault which can justify the employee's dismissal with immediate effect.(2)
However, the Luxembourg courts do not apply this principle to the letter. Indeed, the consumption of alcohol – and thus drunkenness – in the workplace will constitute a serious fault only in certain circumstances, which the courts should assess on a case-by-case basis.
In their analysis, the courts consider the following criteria:
Thus, in practice, although occasional and moderate consumption of alcohol during working hours seems to be tolerated by the courts, this is not the case when employees report to work intoxicated and disrupt the smooth running of the business.(3)
The present case concerned the dismissal of an employee (a staff representative) who had been practising as a registered nurse in a care home for the elderly for more than four years.
The dismissal was based on two points:
With regard to the first point, the employer stated that:
Moreover, there had been another three similar incidents which had occurred six months earlier, for which the employee had been summoned to a management interview and received a letter on this subject.
On the basis of certificates and testimonies from the employee's colleagues heard at the first instance, the Court of Appeal confirmed the Labour Court's judgment and declared the dismissal justified.
The decisive criteria relied on by the Court of Appeal included:
Thus, the judges held that:
In matters of blood alcohol content at work, it is accepted that the degree of alcoholic impregnation sufficient to constitute a real and serious cause of dismissal varies according to the profession of the person concerned. Repeated drunkenness constitutes a real and serious cause of dismissal regardless of whether it has any impact on the quality of the work provided.
In the present case, it follows from the whole of the file that A's behaviour constitutes a real and imminent danger for the residents, is incompatible with the obligations arising from the employee's nursing function and making all collaboration impossible in itself an area as sensitive as that of the treatment of particularly vulnerable elderly people.
As these initial facts were sufficient to justify the employee's dismissal, the judges did not analyse the other shortcomings and declared that the employee's employment contract had been terminated with effect from the date that the dismissal letter had been hand delivered.(4)
Establish preventive rules regarding alcohol consumption
As part of employers' disciplinary power, they can determine if and under what conditions alcohol consumption before or during work is permitted.
Thus, to prevent incidents, employers should specify in internal regulations:
These rules should be clearly communicated to employees in order to make them enforceable. Moreover, employees must be informed of the risks and consequences that they may face for being intoxicated in the workplace.
Remove drunk employees from their positions
By law, employers are "obliged to ensure the safety and health of… employees in all aspects related to work".(5) In addition, "as part of its responsibilities, [an] employer [must take] the necessary measures to protect the safety and health of employees".(6)
Thus, employers cannot remain inactive in the face of an employee's intoxication if the employee's or others' safety is compromised. If an employee can no longer perform their work under normal conditions, the employer must intervene by prohibiting them from continuing to work and organise their return home under secure conditions. If this type of incident reoccurs, employers should contact an occupational doctor in order to determine whether the employee has an alcoholism problem.
Note employees' state of intoxication
Following an incident, employers should make a detailed report concerning:
In addition, testimonies as to the employee's behaviour may be collected and added to the report. Employers can also call on the designated employee or safety representative to ascertain the employee's state of intoxication.
These measures allow employers to provide occupational doctors with a detailed description of the employee's state for their follow-up care, if necessary. In addition, in litigation, this evidence will be necessary to prove the employee's state of intoxication if they refused to undergo a screening test.
Blood alcohol test (via urine, blood or respiratory tract)
Screening tests using urine or blood are procedures which infringe employees' right to a private life and are, in principle, prohibited without the employee's express consent. However, the courts have stated that:
the use of screening tests by a urinalysis can be justified only for positions at risk, provided that a serious incident justifies the implementation of the screening test and that the test be carried out by the occupational doctor who concludes on the suitability or inaptitude of the employee for his work station.(7)
In principle, respiratory screening tests would be authorised when they are not invasive; however, employers obviously cannot force an employee to breathe, which is why it is important to collect testimony and take legal action.
For further information on this topic please contact Guy Castegnaro or Ariane Claverie at Castegnaro by telephone (+352 26 86 82 1) or email (firstname.lastname@example.org or email@example.com). The Castegnaro website can be accessed at www.castegnaro.lu.
(3) Court of Appeal, 17 November 2011, 37282, which states that "a single and isolated consumption of a bottle of beer over a year of service cannot immediately and definitively make the continuation of contractual relations impossible, especially if as in this case the fault of the employee caused no damage to the employer, clients, [or] other employees". See also Court of Appeal, 26 June 2014, 39416, which states that "in view owing to the fact that it was an isolated fact committed by an employee having a tenure of service of almost 10 years… the Court judges abusive to sanction this single fault by a dismissal with immediate effect".
(4) Employee delegates are protected against dismissal (with notice and immediate effect) at all times during their mandate. In the event of gross negligence on the part of an employee delegate, the employer must first dismiss the employee delegate immediately and then ask the court to terminate the employment contract. This resolution will be approved only if the employer can prove a serious fault on the part of the employee delegate.
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