Employees who consume alcohol and drugs during work or who want to work under the influence remain a problem for employers. What measures can you take against this? Are you allowed to test an employee if you suspect they are under the influence?
It may not be something you think about every day as an employer, but it can happen: an employee using drugs during a staff party, or an employee lighting up a joint during a Teams meeting. How far can you go in taking measures? Is summary dismissal justified, or should you opt for less drastic sanctions such as a warning or suspension? And are you allowed to conduct unannounced drug and alcohol tests? These questions are addressed on the basis of four recent court rulings.
In a ruling, the District Court of North Holland decided that there were no urgent grounds for the summary dismissal of a hotel receptionist. She had used a small amount of cocaine during a company party. The judge concluded that the cocaine use did not constitute an urgent ground for dismissal because the company party took place outside working hours, alcohol consumption was openly permitted there, and the position of receptionist entails different responsibilities than those of, for example, a security guard or manager. The judge also concluded that the employer did not consistently enforce its own alcohol and drug regulations. For example, despite the alcohol ban, alcohol was still served at the company party.
The judge’s final ruling was therefore that summary dismissal was too extreme a measure in view of the situation. The employer could have opted for a less drastic measure, such as issuing a warning. The judge therefore ruled that the dismissal was not legally valid. The employer’s request to terminate the employment contract was also rejected.
The Amsterdam Court of Appeal ruled that there was indeed urgent cause and therefore valid summary dismissal in the case of a managing director who accidentally turned on his camera at the end of a Teams meeting, allowing the other participants, including his manager, to see that he was smoking a joint. The court reached this conclusion partly because this happened during working hours, the manager had considerable responsibilities and the employer had a strictly enforced zero-tolerance policy.
The fact that the dismissal was not given until a day later did not detract from the requirement of immediacy. The manager had first discussed his observation with other attendees at the meeting and, as an Englishman, sought legal advice on Dutch law. All things considered, the court ruled that the dismissal was legally valid.
A ruling by the Limburg District Court shows that summary dismissal can also be given when the offence took place six months earlier. A housing supervisor at the Central Agency for the Reception of Asylum Seekers (COA) was summarily dismissed for drinking alcohol during an outing with asylum seekers, including children, to the Toverland amusement park. He paid for the drinks with vouchers he had received from the COA and loudly announced that he was drinking at the COA’s expense. By the end of the outing, he could barely stand on his own two feet.
The court ruled that there were compelling reasons for the dismissal: the outing took place during working hours, there was a policy prohibiting the consumption of alcohol during working hours, and the employee was responsible for supervising the asylum seekers, including minors, at that time. Moreover, he should have realised that during the outing he was representing the COA in society, which entails a certain degree of responsibility. His excessive alcohol consumption was incompatible with his responsibilities, and the fact that he was a first-time offender did not alter this.
The fact that the dismissal was only given six months later did not conflict with the requirement that summary dismissal must be given without delay. The COA only heard about the incident after a report from a colleague of the employee. The court rejected the employee’s argument that the manager was already aware of the incident during the outing as being based on assumptions. The summary dismissal was legally valid.
In a case before the Limburg District Court, an employer, a metal processing company, requested the termination of an employee’s employment contract after he tested positive for cannabis during an unannounced alcohol and drug test. The employee argued that the test should not be allowed as evidence. In the absence of a legal exception for the employee’s work, it is prohibited to process special personal data, which includes saliva tests. As a result, the saliva test should be considered unlawful evidence. The court agreed.
In addition, it was questionable whether the employee was actually under the influence of drugs. The judge ruled that it was unclear which test had been used, making it impossible to verify its reliability. The judge also noted that it is well known that most saliva tests do show that someone has used cannabis, but do not prove that someone is still under the influence. A blood test is required for this. The statements made by the managers and external employees were also insufficient for this purpose. The symptoms they had observed could also have been caused by the stress experienced by an employee who knew that his job was at stake.
The judge rejected the request to terminate the employment contract because, by excluding the test as evidence, it had not been sufficiently demonstrated that the employee wanted to work under the influence of cannabis. And even if the test had been admitted as evidence, it still did not provide clarity about being under the influence. Therefore, there was no reason for termination.
All in all, it can be concluded that judges do not simply allow dismissal for the use of alcohol or drugs and look closely at what is going on. A number of important points to consider are:
Because summary dismissal must be given immediately, the employer must act quickly but also carefully if they become aware of drug or alcohol use. Testing is legally difficult, because it can quickly lead to unlawful evidence. Employers are usually unable to invoke one of the grounds that allow the processing of medical data about employees, as this is what testing for the presence of narcotics is. What employers can do is introduce a zero-tolerance policy, enforce it consistently and carefully consider which measure (warning, suspension, dismissal) is appropriate in the given situation.
Do you have questions about the use of alcohol and drugs at work? Are you looking for assistance in drawing up and implementing a clear policy on this, or would you like to know what measures you can take against an employee who comes to work under the influence? Please do not hesitate to contact us:
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