Alcohol addiction

“One of my employees, who’s been working for me for more than ten years, has become an alcoholic. Since he got divorced a few years ago, he no longer takes proper care of himself. He has missed work without notice on several occasions, is often late, looks dishevelled, has become disruptive and almost always smells of alcohol, even when customers are around. I recently gave him a final warning. Now he’s off work again without a proper reason. His father contacted me saying he was ill, but when I started asking questions the real reason turned out to be alcohol abuse. Can I dismiss him without getting into trouble?”

It’s not possible to give a straightforward answer to this question without more information. In such cases, employers need to take great care. In the first place, the court will want proof that the alcohol consumption is not just incidental. Several past judgments show that the mere fact that you have occasionally smelled alcohol on your employee’s breath or discovered that your employee has consumed alcohol at work will not be enough. Courts are also reluctant to allow employers to take action based on alcohol abuse outside the workplace, for example drink driving outside working hours, even if this takes place in a company car provided by the employer. Instead courts require evidence of systematic alcohol abuse that is preventing the employee from performing satisfactorily at work.

Failed attempts

Courts will generally only hold that termination is unavoidable if the employer can show that well-intentioned attempts to assist the employee to overcome his alcohol addiction have been unsuccessful. As an employer, this is the first action you are expected to take in this situation: a genuine attempt to help the alcoholic employee to get over his drinking problem. Although it is debatable whether alcohol addiction can be said to be an illness, most courts will deal with it as such, particularly if the employee with an alcohol addiction undergoes treatment with Antabuse or similar medication. For this reason, suspending salary payments should only be considered as a tactic if the addicted employee has refused to accept treatment for the addiction.

If this tactic does not induce the employee to take the necessary action, you will be at liberty to take effective action to terminate your uncooperative employee’s employment contract. This could take the form of summary dismissal or an application to the sub-district court for rescission of the employment contract “due to urgent reasons”. The latter route is generally preferable as this will provide you with legal certainty about the correctness of your actions within a short period

and without significant financial risk. There are many examples of judgments where courts have agreed to such termination without any settlement payment. There is a single precedent where a court decided to award the employee a settlement amount for the years in which he did perform satisfactorily. However, in view of the other decided cases the judge in question appears to be alone in taking this approach.

No blame required

In the past, lengthy proceedings were conducted on the issue of whether it is a requirement in summary dismissal cases that the employee can be blamed for his actions. In 2000, the Supreme Court held that summary dismissal may also take place without any element of blame. The case concerned an employee who was unable to carry out his work due to drunkenness. He argued that his alcohol abuse was due to an illness, specifically depression, and that as a result he could not be blamed for it. However, the Supreme Court emphasised the fact that the criterion for summary dismissal is “deeds, attributes or behaviour of the employee” with the consequence that “the employer cannot reasonably be required to allow the employment contract to continue”. It is not therefore a requirement that the employee can be blamed for his behaviour.

In the case described here, you do not seem to be dealing with an employee whose alcohol consumption is incidental. Not only have you regularly caught him smelling of alcohol, it is clearly influencing his performance as well. You state that you have given him a final warning. In this case, I would advise you before taking action to try again to persuade him to undergo treatment to overcome his alcohol addiction. This will show the court that there is no lack of good intentions on your part. If your employee refuses treatment or the treatment is unsuccessful, you can suspend payment of his salary. If that does not improve the situation either, you can apply to the sub-district court for rescission of the employment contract due to urgent reasons. If the only grounds for rescission that you put forward are urgent reasons, the sub-district court cannot award any settlement payment when granting rescission.

Is alcohol addiction an illness?

The term ‘illness’ is not defined in the legislation. The courts have done their best to formulate a definition. A number of judgments have held that under the Dutch Sickness Benefits Act an employee insured under the social security scheme is entitled to claim benefits for incapacity to work where this is a “direct, medically verifiable consequence of illness”. There is no legislation or case law establishing that alcoholism can be considered to be an illness. Most courts do regard hospital admission to undergo treatment with Antabuse or similar medication as incapacity to work qualifying for sickness benefits. One can deduce from this that courts are unlikely to regard sickness caused exclusively by excessive alcohol consumption as an illness and therefore that such sickness entitles you to suspend your obligation to make salary payments.