Until recently, the Czech Supreme Court had adopted a rather lenient approach to alcohol in the workplace in its case law. However, the Constitutional Court has, in a recent judgment, departed from this employee-friendly line of reasoning. A refusal to undergo a breath alcohol test, when combined with other circumstances, may constitute grounds not only for termination by notice but also for immediate termination of employment.
Alcohol testing of employees
An employer may test employees for alcohol in two ways: (a) by means of a preliminary test, or (b) by a medical examination.
An employee has a statutory obligation to submit to a preliminary alcohol test (breathalyser) if instructed to do so by a managerial employee designated in writing, and only where there is reasonable suspicion. What are the consequences of refusing a breath test? And what if the employee refuses to undergo a medical examination?
The standard procedure for alcohol testing always presupposes a medical examination. Regardless of whether the employee refuses or does not refuse the test by breathalyser, the examination should be always subsequently carried out. However, if the breath test is performed using a device prescribed by law, no further medical examination needs to be conducted.
In the first scenario (the standard procedure), the employee is deemed to be under the influence of alcohol only upon refusal of the medical examination, not upon refusal of the preliminary (breath) test. In the second scenario, however, a legal fiction of presence of alcohol should arise already upon refusal of the breath test carried out using the legally prescribed device. In exceptional cases (e.g. employees working as drivers), a positive breath test alone may already constitute sufficient grounds for termination.
Whether the presence of alcohol is proven by a test or merely presumed due to refusal, such conduct constitutes a breach of the employee’s obligations. This does not, however, automatically lead to a valid termination of employment. In certain cases, the breach may not reach the required level of intensity to justify termination.
Breaches of obligations sufficient to terminate employment
In the event of a breach of obligations, an employer may terminate an employment relationship in three specific cases, namely where there is:
- a particularly gross breach of an obligation arising from legal regulations relating to the work performed by the employee,
- a serious breach of an obligation arising from legal regulations relating to the work performed by the employee, or
- a series of repeated (3 and more) less serious breaches of an obligation arising from legal regulations relating to the work performed, where the employee has been warned within the previous 6 months.
Due to the first kind of breach listed above, the employer may also immediately terminate the employment relationship, i.e. without notice.
When does a breach qualify as particularly gross / serious / merely a less serious? This question cannot be found in Czech legislation. Unfortunately, to obtain the answer, a monitoring of case law is required.
Each case must be assessed individually, considering all relevant circumstances. The Supreme Court’s case law emphasises that the court must consider “the character of the employee, the position held by the employee and its social significance, the employee’s performance, attitude towards fulfilling work duties, the degree of fault and the intensity of the breach of the legal obligation, whether the employee caused damage by their conduct, and any contributory fault on the part of the employer or other persons.”
At present, the Supreme Court tends to favour employees by taking all the above factors and more into account, sometimes even appearing surprisingly lenient. In particular, it evaluates whether the incident was isolated and the nature of the employee’s position (extent of responsibility, hazardous work, etc.).
An illustrative example is the Supreme Court decision of 19 December 2016. In this case, the employer terminated the employee’s employment for serious breach of work duties. The breach consisted in a measured blood alcohol level: 0.23‰ detected by a breath test 15 minutes before the start of the shift, and 0.11‰ detected by a blood test taken 1 hour and 15 minutes later. The employer argued that the employee had entered a particularly hazardous workplace under the influence of alcohol and had performed the role of shift supervisor, which increased the harmfulness and seriousness of the breach.
The Supreme Court ruled in favour of the employee. It pointed to the employee’s previously unproblematic employment record and stated that alcohol consumption must reach such a level as to demonstrably affect “the reduction of mental functions and the employee’s overall alertness.” It emphasised that the measured blood alcohol level approached 0.2‰, which is considered inconclusive level. As a result, the Court concluded that the mere detection of alcohol does not necessarily constitute a serious breach of obligations. In this case, the presence of alcohol was assessed as a less serious breach of work duties (which would require at least three such breaches to justify termination). Consequently, the termination was deemed disproportionate and invalid.
It is also worth mentioning that, in the light of decision file no. II. ÚS 7/96, any consumption of alcohol by an employee-driver constitutes a serious breach of obligations per se and therefore automatically constitutes grounds for termination.
The Constitutional Court sides with employers
The Constitutional Court has “reined in” this rather benevolent approach of the Supreme Court. In a judgment issued this year, the Court sided with an employer (a school) which had immediately terminated the employment of two teachers.
The teachers failed to attend classes, were found in a locked staff room with bottles of alcohol, refused to undergo a breath test, left the workplace without excuse, and subsequently obtained certificates of temporary incapacity for work. The lower courts and the Supreme Court characterised teachers’ conduct as a rare excess, given their previously unproblematic employment history.
However, the Constitutional Court noted that the courts should not have disregarded the employer’s assertions regarding previous difficulties with teachers merely because they were not explicitly stated as grounds for immediate termination. These circumstances must also be taken into account when assessing the seriousness of the breach of obligations.
Furthermore, the Constitutional Court held that the mere refusal to undergo breath test must be assessed to the detriment of the teachers. The Court also considered it significant that teachers are expected to demonstrate a “higher level of moral integrity and dignity.” Therefore, despite uncertainty in establishing the factual circumstances, the Constitutional Court found the present immediate termination of employment to be justified, in view of other indications pointing to deeper alcohol-related issues on the part of the teachers.