The discovery of any amount of alcohol in the employee’s blood entitles the employer to dismiss the employee on disciplinary grounds

The judgment of the District Court for Poznań-Grunwald and Jeżyce in Poznań of 12 October 2021 dismissed the action against the Law Firm’s Client, who was the employer, for reinstatement in connection with the termination of the employment contract by the plaintiff at his own fault due to the plaintiff’s alleged grave breach of his basic employment duties consisting in the obligation to remain completely sober during working hours.

The case was unprecedented in that it involved the discovery in an employee’s blood during a breathalyser test conducted by police officers of alcohol level, which did not meet the definition of a “state after alcohol consumption” (which occurs when the alcohol content in the body is or may result in the presence of between 0.1mg and 0.25mg of alcohol per 1 dm3 in the exhaled air) or a “state of intoxication” (may result in the presence of 0.25mg pr more of alcohol per 1 dm3 in the exhaled air) within the meaning of the Act of 26 October 1982 on Upbringing in Sobriety and Counteracting Alcoholism. In the case of the plaintiff, the presence of alcohol in the exhaled air was lower, but it nevertheless testified to the persistence of alcohol in his body during working hours.

The District Court for  Poznań-Grunwald and Jeżyce thus did not agree with the plaintiff’s argument, which amounted both to disputing the premise of a serious breach of fundamental obligations of employees in connection with the plaintiff not being at least in a state after alcohol consumption, and raising circumstances concerning the plaintiff’s consumption of medicinal products or use of alcoholic preparations for disinfecting hands and skin, which could have had an impact on the result of the alcohol test. In this case, the Court sought the expertise of an expert in toxicology, who ruled out the possibility of such substances affecting the test result, and also explained the contradiction between the plaintiff’s claims regarding the time of alcohol consumption and the concentration found in the plaintiff during the test.

Thus, following the position presented by the Law Firm, the Court held that a breach of an employee’s obligation to remain sober occurs not only after the consumption of a quantity of alcohol leading to the occurrence of a “state of intoxication” or a “state after alcohol consumption”, but also if any quantity of alcohol causing it to remain in the employee’s body during working hours is present. In the reasoning of the judgment, the Court aptly stated that: ‘Alcohol norms are relevant to the criminal law assessment of a given event, not to the analysis of whether the plaintiff committed a serious breach of his employment duties. The Court also noted that the plaintiff held a managerial position which required him to exercise particular care in the performance of his duties.

The judgment is not yet final. The case was conducted by Joanna Kaczmarek-Pawlak, barrister, Paulina Kozłowska, barrister, and Michał Górski, barrister.