Alcohol consumption and drug testing: jurisprudence applies a common sense approach to facts

For health and safety reasons, employers are free to include a "zero alcohol tolerance" clause in their internal rules, particularly for activities that present particular risks for employees or third parties. Only the company's internal regulations can provide a framework for this type of system, and case law has often had to rule on the matter. For example, it has ruled that an employee must be able to contest a blood-alcohol test. On this subject, the French Supreme Court ruled on December 6 that the employer's refusal to carry out a counter-expertise provided for in the internal regulations, but requested late, was not such as to render the dismissal devoid of real and serious cause. This ruling should also be seen in the context of another decision handed down by the Orléans Court of Appeal (November 30, 2023, no. 22/00063), which ruled that an employee's refusal to undergo such a test constitutes serious misconduct, provided that the practice is duly supervised internally.   ***   In the case submitted to the Cour de cassation, an employee, a bus driver, was tested for alcohol prior to taking up his duties, and found positive at 0.14 mg/l. of exhaled air, i.e. 0.28g/l. of blood. The employer dismisses him for gross misconduct, considering that the employee has violated :

• the provisions of the company's by-laws, which prohibit the performance of any activity under the influence of alcohol;
• Article R 234-1 of the Highway Code, prohibiting the driving of a public transport vehicle with a blood alcohol concentration equal to or greater than 0.20g/l., a fourth-class contravention.

The driver contested the termination, deeming it lacking real and serious cause. In addition to an undoubtedly bad faith motive, namely the consumption of a cough syrup (an argument quickly dismissed by the judges in view of its coarseness), he argues that the fault cannot be held against him, since :

• the company's internal rules allow it to request a second opinion;
• which he requested but was refused by his employer,

which, in his view, characterized a failure to comply with the contractual process and vitiated the procedure. The Court of Appeal did not follow this reasoning at all, rightly noting that the company was right not to follow up on its request, since it was made more than 15 days after the events.and that no evidence was provided by the employee to establish that he would have "in the immediate aftermath of the inspection" requested such an additional examination. Highlights: The Court of Appeal also considered that such facts constituted real and serious grounds for dismissal, and not gross misconduct, since the employee had been able to work on the day of the facts, from the moment he took a test that proved negative, so that it could not be considered impossible for him to continue working, even during the notice period. In any event, the driver appealed to the Cour de cassation. However, the latter validates the position adopted by the Paris Court of Appeal, and opts for a 2-stage argument:

• Firstly, it states that the facts are established, and that the employer cannot be blamed for refusing to carry out a second medical examination, since the request was made late, thus defeating the purpose of such a system;
• secondly, it insists on the fact that if the company had not set up such a control on the day of the incident, the person concerned would have been driving his bus under the influence of alcohol, a fact liable to be classified as a criminal offence, constituting real and serious grounds for dismissal.

It has therefore taken refuge behind common sense, not allowing itself to be fooled by the appellant's explanations, a position which is obviously to be commended. Such a decision is also reassuring, since in support of the appeal, it was argued that the employee could not be blamed for having delayed in formulating a request for a counter-expertise, in that the internal regulations did not stipulate that it had to be requested. "in the immediate aftermath of the inspectionso that the courts would have "added a condition to the text that it does not provide for".. An absurd argument, according to the High Court, given the purpose of this measure: internal regulations providing for the possibility of subjecting an employee to a breathalyser test must be deemed lawful if the procedures for this test allow it to be contested, without there being any need to specify the time limit within which a counter-examination must be requested, since it is obvious that this must be carried out. " in the shortest possible time ", for reasons of reliability. Having said that, let's return to the Orléans Court of Appeal case mentioned above. The facts are simple: a workplace accident involving a forklift driven by a stock manager and a pedestrian. The employer wanted to test the employee for alcohol and drugs, but once the employee arrived in the manager's office and understood the situation, he fled to the infirmary. His supervisor follows him up, informing him that, in accordance with the company's internal regulations, refusal to undergo such tests is likely to constitute a disciplinary offence, a clarification also confirmed by other people he spoke to. The employee ends up leaving the workplace without being screened. He was subsequently dismissed for serious misconduct, which he contested, arguing in particular that the internal regulations were not enforceable against him, as the document did not specify the date on which they came into force. While it is true that the aforementioned internal regulations are silent on the subject, even though article L 1321-4 of the Labor Code stipulates that such a reference must be included, the judges did not dismiss them, considering that, insofar as all the administrative formalities had been completed, they came into force 1 month after being filed with the clerk of the industrial tribunal, in accordance with the law. Once again, this position makes good sense. In addition, the court validated the dismissal for gross misconduct, noting that the company had demonstrated that the employee was fully aware that his employer intended to carry out a drug and alcohol test, but that he refused to submit to it, thus constituting insubordination and leaving no doubt as to the reasons for his refusal. As the internal regulations were clear, and in view of the consequences of the employee's actions, it was clearly impossible for him to remain with the company, even during the notice period. Two decisions are therefore to be welcomed, in particular the second in which the High Court managed to "catch up with the branches" to preserve the validity of the internal regulations. But it also raises another question of common sense: even if this document is invalid, how can we legitimately consider that an employee in an advanced state of alcoholism is not punishable? A regulation (which no employee ever reads) that is therefore stronger than the right to safety when the minimum rules on this subject have not been respected? This is a matter of debate.