Is it lawful to dismiss an employee for being drunk at work?
By Jan Dop
What shall we do with the drunken employee? Sack him? That isn’t always allowed. Alcohol abuse may be the result of an addiction and in that case the prohibition on termination during illness may apply. What do you have to take into account when dismissing an employee due to alcohol consumption?
In the event of an incident at work involving alcohol consumption, employers have several options. First, they can choose to request the subdistrict court to terminate the employment contract, for instance, on the basis of imputable acts of the employee, a disturbed employment relationship, inadequate performance or the remaining ground. Second, the employer can dismiss the employee with immediate effect. In that case there must be an urgent cause for dismissal. When is that the case? How does the court assess this and what facts and circumstances will be weighed against each other?
Dismissal with immediate effect
In dismissal cases involving alcohol consumption of an employee, the following circumstances are relevant for the assessment of whether or not there is an urgent cause:
Does the employer have a clear and consistent alcohol policy (or, more broadly, an alcohol, drugs and medication policy, or ADM policy) that is known to employees? Does the corporate culture permit drinking, or does the employer have a zero-tolerance policy? Another factor is whether employees are asked or encouraged to report alcohol addiction, and whether appropriate provisions have been made for this. These could include appointing an internal confidential advisor and/or offering (preventive) consultation hours with the company doctor at work.
Does the employee have an exemplary role? (The drunken district manager of a bank who rode on his bike naked could not stay in service any longer, just like the purser who set the wrong example for the stewardesses during her flight.)
What kind of work does the employee perform? (The bus conductor who drank shortly before starting work was rightly dismissed.)
Were there any warnings given before?
Prohibition of termination in the event of alcoholism
Another question that has to be raised is whether it concerns an incident at work involving alcohol consumption or alcoholism. Alcoholism is considered to be an illness, and in the case of illness a prohibition of termination applies. Only if an employee has been ill for two consecutive years this prohibition of termination does not apply any more.
The prohibition on termination during illness does not apply if the request for termination is unrelated to the illness or if the employment contract must be terminated in the interests of the employee. In practice, it is difficult to prove that there is no connection between the request for termination and the illness. Furthermore, it is difficult to determine alcohol consumption, as the employer is not permitted to conduct alcohol or drug tests without justification. In case of repeated relapsing, which occurs a lot, the employer may be confronted with an employee who is ill for more than two years but not consecutively and, as a consequence, cannot be dismissed.
How does the court rule?
Imputable acts of the drunken employee
An alcoholic cleaner failed to fulfil his reintegration obligations, whereupon the employer claimed that this constituted culpable conduct. The employer therefore requested the subdistrict court to terminate the employment contract. The court rejected this request. Failure to comply with reintegration obligations is consistent with the clinical picture of addiction. The employee had therefore not acted culpably.
Disturbed employment relationship
The Employee Insurance Agency requested the subdistrict court to terminate the employment contract of one of its medical advisers addicted to alcohol as it considered the working relationship to be impaired. The subdistrict court dismissed this request as the request was related to his illness and would therefore be subject to prohibition of termination. Though the medical adviser had been ill for more than three years, he had not been unfit for work for two consecutive years so that the prohibition of termination was still effective. Another important factor was that the medical adviser cooperated in the treatment.
In another case, things did not turn out so well for the employee. A street lawyer (an expert in the field of addiction) was no longer addicted at the time of the request to terminate the employment contract. According to the judge, the employer could no longer be expected to have confidence in the employee, given the specific nature of his job and the vulnerability of the target group (homeless people). The court therefore granted the request.
Inadequate performance
The employer of a lawyer with an alcohol addiction was dissatisfied with his performance. The court rejected the employer’s request for termination, referring to the prohibition on termination during illness. The employer was unable to substantiate that the employee had been performing poorly even before his alcohol addiction. Since the poor performance cannot be separated from the addiction, the court rejected the request on the grounds of poor performance.
Other circumstances
In the above-mentioned case involving a lawyer with an alcohol addiction, the employer also invoked other circumstances that would justify termination of the employment contract, the so-called safety net provision or h-ground. The employee could relapse and, because he had not been honest about his alcohol problem, trust had been damaged. The court rejected this request because it only related to the employee’s illness. Therefore, a prohibition on termination applied.
In another case, an employee was less fortunate: he had lost his licence to work as a security guard after driving under the influence. This meant that his employment contract had become meaningless. According to the court, the employer’s request to terminate the employment contract was unrelated to the addiction. The prohibition on termination during illness therefore did not prevent termination.
Dismissal with immediate effect
A cleaner with a longstanding alcohol problem was not that lucky because her alcoholism led to incidents at work. Therefore, her dismissal with immediate effect was regarded as fair. Even after a warning she had turned up intoxicated at work. In addition, she had failed to follow adequate treatment for her addiction in time for which her employer had given her sufficient opportunity. However, the court ruled that she had not committed an imputable act and therefore she was entitled to transition compensation. An employee who is rightly dismissed with immediate effect may be entitled to transition compensation after all.
In another case, a municipal official was under the influence several times during working hours. After he appeared clearly drunk in an online meeting with citizens, the municipality ultimately dismissed him with immediate effect. The employer claimed to have been unaware of the alcohol addiction. The court took a different view. Precisely because the employee had repeatedly been under the influence during working hours, the municipality, as a good employer, should have seen reason to call in the company doctor (again). That examination could have clarified whether there was an underlying addiction. Because the employer had skipped that step, the court reversed the dismissal.
Employment lawyer
Would you like to know more about dismissal because of alcohol consumption and what you, as an employer, must take care of? Or do you have any other questions concerning employment law? Please contact Russell Advocaten
About the authors:
Jan Dop Russell Advocaten’s Partner
Jan is a specialist in employment law and corporate law / jan.dop@russell.nl / +31 20 301 55 55
Cindy Ting advises national and international entrepreneurs and employers / cindy.ting@russell.nl
