Drug use outside working hours

It goes without saying that drug use at work can be grounds for summary dismissal. But drug use out of office hours can also give cause for immediate dismissal. The Dutch Supreme Court gave a controversial judgment on this subject on 14 September 2007 (JAR 2007, 250). It suggests a move towards greater freedom for employers to restrict what employees get up to in their free time. Any restrictions are subject to the condition that the behaviour outside working hours must be capable of adversely affecting the quality of the work the employee is contracted to perform.

In the case in question, a woman had been employed since December 1990 as a waitress at the Hyatt casino and hotel in Aruba. In October 2002 she participated in a Drug-Free Workplace Policy training course. During the course, the waitress signed a statement that she would accept dismissal if tested positive for drugs. Almost a year later, she was selected for a random drug test for marijuana and cocaine. She tested negative for marijuana but positive for cocaine. The waitress refused to comply with her employer’s suggestion that she join a drug rehabilitation programme. Her employer then dismissed her summarily. As grounds for dismissal, Hyatt stated that the waitress had not complied with the drugs policy and had refused the offer of participating in a drug rehabilitation programme.

Strict policy on drugs

The waitress went to court claiming continued payment of her salary and resumption of her duties. She argued that there was no urgent reason for the summary dismissal. On appeal the Court of Appeal held that it was in Hyatt’s interests to have a strict policy on drugs, particularly as the hotel chain needed to maintain its good name. According to the Court of Appeal: “Correct behaviour by its employees at all times forms an important part of this. It is well-known that drug use can have a negative influence on behaviour.” The Court of Appeal also adopted the noteworthy legal position that: “It is irrelevant in this context whether the drug use occurred during or outside working hours and whether it actually had a negative influence on the employee’s work. In the opinion of the Court this is justified by the fact that it is well-known that drugs used outside working hours can also affect performance at work and that the influence actually attributable to drugs will often be difficult to prove.”

The waitress argued before the Supreme Court that Hyatt’s anti-drugs policy constituted an unacceptable infringement of her private life. She argued that Hyatt was not at liberty to establish a policy prohibiting purely private use resulting in a positive test for drugs, without any proof that this use actually had a negative influence on safety or on her work. According to the waitress, Hyatt was thereby in breach of Article 8 of the European Convention on Human Rights, which safeguards the right to respect for private and family life. The Supreme Court acknowledged that Hyatt’s anti-drugs policy did to a certain extent infringe employees’ private lives by making it impossible to use drugs during free time without the risk of summary dismissal. However, the Supreme Court considered this infringement justified. The Supreme Court held that in this case the employer’s anti-drugs policy served a legitimate purpose and was an appropriate means to achieve that purpose. In reaching this conclusion the Supreme Court took into consideration the known fact that drug use during free time can have an influence on work and accorded greater significance to Hyatt’s interest in maintaining its good name than to an employee’s interest in using drugs during free time. The Supreme Court thereby rejected the employee’s cassation appeal.

Commentary

This judgment has been the subject of a great deal of comment by legal experts. In this specific case, the Supreme Court explicitly sets aside the right to respect for the employee’s private life in favour of the employer’s interests. This shows that employers are sometimes entitled to restrict what employees get up to in their free time, as that behaviour can affect their performance at work.

One wonders whether this will set a trend. Just how far can an employer go in restricting employees’ private lives? Is an employer permitted to restrict its employees’ behaviour if this is good for their health? It also raises interesting issues in terms of evidential law. What should one think about an employer who requires employees to take a lie detector test if suspected of theft? Watch this space!