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The consumption of alcohol, whether festive or not, is likely to cause problems in the workplace.
Whether it's a group farewell party, a simple business lunch or a lunch between colleagues that's a little too drunk, how can employers limit alcohol consumption so that it doesn't create health and safety risks for their employees? And does he have the right to do so?
This issue is governed by labor law.
Let's take a look at the main rules.
Surprising as it may seem, the consumption of alcohol in the workplace is not strictly forbidden by the French Labor Code.
In fact, while article R.4228-21 of the Labor Code stipulates that it is forbidden to allow an intoxicated person to enter or remain in the workplace, the previous article states that no alcoholic beverage other than wine, beer, cider or perry is authorized in the workplace (article R.4228-20 paragraph 1 of the Labor Code).
So, by default, it is theoretically possible to drink alcohol in the workplace.
However, this tolerance established for certain beverages may be limited or even prohibited by the employer in consideration of certain high-risk workstations or activities carried out by employees.
The aforementioned article stipulates that when the consumption of alcoholic beverages is likely to be harmful to the safety and physical and mental health of workers, the employer, in application of article L. 4121-1 of the French Labour Code, shall include in the internal regulations or, failing that, by memorandum, measures to protect the health and safety of workers and prevent any risk of accident. These measures, which may take the form of limiting or even prohibiting consumption, must be proportionate to the aim pursued.
Employers have an obligation to ensure the safety of their employees (article L.4121-1 of the French Labor Code). He must therefore take the necessary measures to prevent the consequences of alcohol consumption within the company.
In this context, the employer has the choice of either (i) limiting alcohol consumption by prohibiting it from specific activities for which it must be prohibited (e.g. sales staff who spend a great deal of time in their company car), or (ii) prohibit consumption altogether.
In all cases, these measures must be justified and proportionate in relation to the activities carried out within the company, in order to respect the imperatives of accident prevention and all the protective measures to be put in place (article R.4228-20 paragraph 2 of the Labour Code), which the judge is responsible for monitoring.
With regard to the authorization given by the Labor Code to the consumption of alcohol in the workplace, case law will thus more generally consider that the general prohibition must be seen as an exception, and the employer may only do so if this prohibition is exceptional and justified (CE November 12, 2012, n°349365).
Note : the Conseil d'Etat has just validated a total ban on alcohol consumption in a factory, considering that the employer justified the fact that the majority of employees were required to work with machines and tools, and to be in contact with dangerous chemicals (CE 14 mars 2022, n°434343).
As indicated above, it is in any case forbidden to allow an employee to enter or remain in the workplace while intoxicated (article R.4228-21 of the French Labor Code).
In this respect, there is a dual obligation: for the employee, who must remain sober in the workplace, and for the employer, who must not allow an intoxicated employee to be present in the workplace.
What should be done if an employee is intoxicated in the workplace?
Employers can verify that their employees are not intoxicated, by checking their blood alcohol levels using breathalysers. In the event of a positive test, the employer can use this as a basis for disciplinary dismissal (Cass soc February 24, 2004, n°01-47.000).
However, this cannot be done without setting up a clear and compliant process.
For example, the employer may resort to this measure on two conditions: firstly, that the employee has the possibility of requesting a counter-expertise to contest the results, and secondly, that the finding of intoxication must be of such a nature as to expose employees to danger, given the nature of the work entrusted to them.
Can an employee request a second opinion at any time?
The Cour de cassation has just answered this question. In a recent ruling, it indicated that the employer is entitled to refuse a counter-expertise requested belatedly by an employee subject to an alcoholtest (Cass soc December 6, 2023, n°22-13.460).
What are the employer's obligations?
An employer who allows an intoxicated employee to enter or remain in the workplace may be liable to a fine of 3,750 euros for each drunk employee on the premises.
In the event of an accident, the employer may also be held criminally liable (article 121-3 of the French penal code) or civilly liable (article 1242 paragraph 1 of the French civil code).
Entering or being present at the workplace in an intoxicated state is also a fault on the part of the employee.
The employer who observes such a situation is therefore in a position to sanction an employee who is intoxicated, or who consumes alcohol in the workplace under conditions that do not comply with the regulations in place at the company (or with the legal regulations set out above).
As with any disciplinary sanction, the employer may decide to issue a penalty ranging from a simple warning to dismissal for misconduct, depending on the seriousness of the facts. In the most serious cases, an intoxicated employee may even be dismissed for gross misconduct.
Be careful when drafting the letter of dismissal in this case! Judges can be very strict about the way in which the reason for dismissal is reported. In a recent example, the dismissal was deemed to be without real and serious cause on the grounds that the letter of dismissal referred only to the “facts of performing work at height with a blood alcohol level above normal” and did not contain the words “performing work at height while intoxicated”.(Cass soc, March 8, 2023, n°21-25.678).