In case I PK 194/17 of 4 December 2018, the applicant was dismissed from work under disciplinary procedure without notice in connection with a sobriety test carried out at the company, which showed him 2.8 per mil of alcohol in his blood. The applicant contested the possibility of drawing legal effects from the result of such an examination. The Supreme Court judges had no doubt that the employer’s behavior was inappropriate.
Undoubtedly, being an employee in the place and time of work in a state of drunkenness or after using alcohol may constitute a serious violation of basic employee duties. The employer is obliged not to allow an employee who is reasonably suspected of such circumstances to work. In addition to observing the employee, it is permissible to use the method of subjecting the employee to a test to determine the alcohol content in his body – for example with a breathalyzer.
The result of such a test confirming the content of alcohol in the blood can be treated as the basis of actual presumptions that the employee is in a state of alcohol use or intoxication. If the test is carried out with a proprietary device, it is recommended that you always make a report on the employee’s sobriety check. The report may have significant evidential value in the event of a dispute between the employer and employee regarding the assessment of the occurrence. Moreover, such an examination can only be carried out with the consent of the employee being tested.
Submitting an employee to an sobriety tester available from the employer does not currently release the employer from calling an authorized body appointed to protect public order to formally conduct such an examination. The sobriety of an employee may be examined only by an authorized body appointed to protect public order (police officers). This examination should take place at the employer’s request, if the employee does not make such a request.
In any situation, the obligation to prove the reason for the termination of the employment contract without notice due to the fault of the employee, and thus his or her intoxication, is borne by the employer,
It is primarily in the interest of the employer to determine whether the employee is able to work or whether he is in a state that precludes his benefit because of alcohol consumption. It is in the interest of the employer to call an authorized body appointed to protect public order in order to carry out an on-site examination of the employee’s sobriety at the workplace. A company breathalyser test may only be of an ancillary nature.