In a recent decision[1], the Supreme Court addressed the issue of whether an employee’s refusal to take a breathalyzer test in a situation where there is a reasonable doubt that the employee has consumed alcohol is sufficient grounds for immediate termination of employment.

The state of facts

Two staff members – teachers at a high school – were found in a locked office during work hours more than 30 minutes after the start of classes the staff members were scheduled to teach. According to witnesses, there were partially empty and completely empty bottles of alcohol in the cabinet. The school management asked the employees to submit to a breathalyzer test for alcohol, which both employees refused. They then left the school building, saw a doctor and were both retrospectively declared temporarily unfit for work.

Seriousness of the employee’s breach of duty by refusing a breath test

Refusal to take a breath test is unquestionably a breach of the employee’s duties. Immediate dismissal, however, requires that the obligations be breached in a particularly crude manner. Specifically, the courts consider whether the employer can fairly be required to employ the employee for at least the duration of the notice period.

According to the Supreme Court, when assessing the intensity of an employee’s breach of duty by refusing a breath test, it is necessary to take into account the circumstances under which the refusal occurred, in particular whether the employee’s mental functions and alertness were impaired. In the present case, neither of the employees was found to have shown signs of having consumed alcoholic beverages (one of the employees was not even found to have consumed alcoholic beverages). It can therefore be concluded that if the employee objectively showed obvious signs of drunkenness and showed a noticeable reduction in mental functions, in such a case the refusal to submit to a breath test would be a more serious breach of the employee’s duties than in the present case.

Furthermore, in assessing the degree of intensity of the violation, the courts take into account, inter alia, the employee’s previous attitude, the specific violation, the degree of fault, the time and situation in which the violation occurred, and the employee’s position and personality.  However, the result of the assessment of the intensity of the infringement is not a mere arithmetic average of all the circumstances.

The Supreme Court also commented briefly on the limits of the higher moral standards placed on educators. It concluded that since the alleged consumption of alcohol occurred in an office, outside the performance of direct teaching activities and without the presence of pupils or any members of the public, the incident could not have posed a direct threat to the pupils’ moral development or the school’s reputation to such an extent as to justify summary dismissal.

Although in this case the Supreme Court concluded that there was no particularly crude misconduct by either employee, the Supreme Court also suggested that there could be serious misconduct by the employee, so termination would likely be justified.

Conclusion

Simply refusing a breath test may not be a particularly crude breach of the employee’s duties, even if the employer has reasonable grounds to suspect that the employee has consumed alcoholic beverages.

We conclude that in light of current Supreme Court case law, termination is the safer choice in similar cases. Nevertheless, as a precautionary measure, employers are advised to consult their legal representatives in advance, especially if the employer intends to take the immediate termination route. We will be happy to consult with you to resolve such situations, so please do not hesitate to contact our experts.  

[1] Resolution of the Supreme Court of 23.07.2024, Case No. 21 Cdo 1562/2023