If the consumption of alcohol can easily be a smile because it is intimately linked to a festive act, within the company it can have serious consequences for the employer and employees. A recent Ifop survey for the association PSRE (Promotion and monitoring of road safety in companies) shows that “more than 90% of French employees participate in pots in companies (…). Alcohol is offered during 70% of these pots. ».
In our Region where wine activity is important, the “degree” of importance of the subject is high.According to the National Interministerial Observatory for Road Safety, almost half of all fatal “work” accidents are road accidents and these are the leading cause of death on the job in France.
What does the law say?
With regard to alcohol in the workplace, the responsibility is both to:
– The employer which must enforce the provisions of the Labour Code and those introduced in the institution’s internal regulations. It is under section L. 4121-1 of the labour code that the employer is bound by a general duty of safety to its employees. It must take ” measures necessary to ensure the safety and health of the workers at the facility.”
– Every employee Article L4122-1 of the Labour Code holds responsibility for its safety and health: ” In accordance with the instructions given to it by the employer, under the conditions of the internal regulations for companies required to develop one, it is up to each worker to take care, based on training and ability, health and safety, and those of others affected by his or her actions or omissions at work. »
Section R. 4228-20 of the Labour Code limits the types of alcoholic beverages that are permitted to work: ” No alcoholic beverages other than wine, beer, cider and pear are allowed in the workplace. (For non-specialists, the pear is to pear what the cider is to the apple).
Strong spirits such as pastis, Whysky, Get 27 or Vodka are therefore prohibited. No word on the fate of peanuts and chips, so they are allowed at will.
The Court of Cassation ruled that drinking alcohol in the workplace during a pot unauthorized by the employer does not constitute a serious fault justifying dismissal (Cass. soc., December 15, 2011, No. 10-22.712, Akers France).
However, section R. 4228-21 states, “It is prohibited to allow intoxicated persons into or of the workplace to enter or stay in the workplaces ». This is justified for dismissal for misconduct of the employee who is twice intoxicated at work (Court of Cassation, Civil, Social Chamber, 18 December 2012, 11-22.155).
The employer may, where safety requirements warrant, insert provisions in the company’s internal regulations that limit the consumption of alcoholic beverages more strictly than the prohibition laid down by art. R. 4228-20 above. Such provisions must, in accordance with Article L. 1321-3 of the Labour Code (Content and Conditions of Validity of the Internal Regulations), remain proportionate to the desired security purpose (EC 12 Nov 2012 No. 349365, Caterpillar France).
As a reminder: “The internal regulation is a written document by which the employer sets exclusively (…)enforcement measures for hygiene and safety in the company or establishment” (Article L. 1321-3 of the Labour Code).
In addition, the use of the breathalyzer or ethylometer is permitted, but only in case of a dangerous situation and according to the conditions defined in the internal regulations.
Alcohol as an aggravating factor in psychosocial risks in the company
To help employers, Decree No. 2014-754 of July 1, 2014 states that:
« when the consumption of alcoholic beverages (…) is likely to affect the safety and physical and mental health of workers, the employer, under Section L. 4121-1 of the Labour Code (relating to the employer’s duty of safety) provides in internal regulation or, failing that, by memo measures to protect the health and safety of workers and prevent any risk of an accident. These measures, which may include a limitation or even a ban on such consumption, must be proportionate to the intended purpose. ».
The case law considers that a blood alcohol test is illegal if the internal regulations authorizing it are not posted in a place accessible to employees: ” The internal regulationis not enforceable against the employee, as long as the employer does not justify that it was displayed in a suitable and easily accessible place in the workplace as well as in the premises and at the door of the premises where the hiring takes place. ».
Indeed, “the employee denies having been aware of the existence of the internal regulation and as a result of the control procedures which allow the challenge of the breathalyzer test ». (Court of Appeal, Rennes, January 14, 2015, 14/00618).
In a judgment of 31 March 2015, the Court of Cassation clarifies the regime of blood alcohol checks on employees carried out by employers with the articulation between the internal regulation and a prevention charter (Cass. soc., 31 March 2015, No. 13-25.436 FS-P-B).
In that case, a road worker employed by a motorway company was dismissed for gross misconduct for being in his workplace in a state of alcohol impregnation attested by a blood alcohol test.
The employee disputes the real and serious cause of his dismissal on the grounds that if the internal regulations allowed the employer to control, for reasons relating to the safety of persons and property, the blood alcohol level of certain employees brought to drive vehicles, a “company charter” concerning “the consumption of alcohol in the workplace, for purely preventive purposes, did not allow him to sanction it”.
The judges of the Court of Cassation overturn the judgment of the Court of Appeal which ruled in favour of the employee, stating that the internal regulations of a company may authorize the employer to carry out, for disciplinary purposes, the controls of the drunkenness of certain categories of employees who, because of the nature of their duties, may expose persons and property to danger.
Regardless of the provisions of a “corporate charter” for all staff with the sole purpose of preventing alcohol use in the workplace:
“The internal regulation (…)allowed the employer to carry out controls on the state of alcohol impregnation of certain particular categories of employees to which the person belonged and which, because of the nature of their duties, could expose persons or property to danger.”
Secondly, the dismissed employee considered that “subjecting an employee to a blood alcohol test outside the workplace, in ignorance of the terms prescribed by the company’s internal regulations, characterizes the violation of a fundamental freedom that null and fits the dismissal.”
On the other hand, the high magistrates consider that the out-of-work control does not constitute an infringement of a fundamental freedom which would result in the nullity of dismissal since, in view of the employee’s activity, his drunkenness is likely to expose persons or property to danger and that the terms of the control, provided for by the internal regulations, , allow it to be challenged.
The fact that the control takes place outside the company does not make it irregular.
Corporate social responsibility through the implementation of a policy to prevent alcohol abuse
Implementing an “alcohol” policy in the company is an approach of the entire working community in which the employer is the decision-maker and the engine of action with the support of prevention actors (occupational health service, social service and social partners).
The Ministry of Labour and Employment has put in place a useful and practical guide to carry out an alcohol prevention policy with all stakeholders in the company.
1 – Starting statement
The entrepreneur will explain to the internal interlocutors of the company the motivations that led him to put in place an approach to prevent alcohol risk in his company: accident or incident in the company, observation of a problem of a very varied nature at an individual level or in several people, safety at the workstations, road safety, national campaign,…
2 – Creation of a steering committee (decision-making group)
Role: setting the principles of intervention and objectives, adapting the method to the company, proposing and validating the actions to be carried out within the company, changing the objectives and deciding the actions to come according to the results obtained and the priorities determined, setting a timetable taking into account the necessary deadlines and the pace of the company.
Composition: the director or production manager, 1 or 2 members of the CHSCT (Hygiene, Safety and Working Conditions Committee) or staff delegates in small businesses or unelected members, on a voluntary basis, the occupational doctor, 1 member of the management.
3 – Presentation of the project for advice by the business manager to the CHSCT or to staff delegates.
In establishments without CHSCT (less than 50 employees), staff delegates carry out the tasks assigned to the committee.
Small and medium-sized enterprises
In small businesses, the steering committee and the prevention group can be confused and grouped: the employer and a volunteer from the management or other employees the staff delegate if there is the occupational doctor or an assistant of the occupational health service.
In very small businesses
In these types of structures, it may even be possible to create “alcohol” business-to-business structures with the help of occupational health services. D
Composition: the employer or an executive representing the employer, 1 or 2 members of the CHSCT, volunteers among the supervisory staff and field workers, the nurse or social worker of the staff, the occupational doctor and the Occupational Risk Prevention Worker.
4 – Alcohol training
This training should be extended to all members of both groups, piloting and prevention.
Program: the alcohol product and its impact on the body, the consequences of alcohol consumption, the “Alcohol” regulation in the company, the methodology of intervention to achieve the state of the scene. …
Terms: duration to be determined, trainers: – occupational health assistants competent in alcoholology, – ANPAA (National Association of Prevention in Alcoholology and Addictology), – CRAM (Regional Health Insurance Fund), – private practices, … NB – In companies of some importance, the presence of a person with a background in alcoholology is a “plus.
5 – State of the Art Actions
Information and communication on alcohol risk, training and awareness of the alcoholology of new employees, development of internal protocols within the company, development of proposals for the internal regulations of the company.
6 – Rating
The steering committee sets out the indicators to take into account.
Thus, to sum up, if alcohol within the company is everyone’s business and the responsibility is on both the employee and the employer, the latter must be the driving force behind a prevention policy carried out with the support of all social actors to limit abuse and thus strengthen the social responsibility of the company.