Random alcohol checks by employers

A railway operator introduced to its staffing rules a ban on alcohol for all employees on duty, a policy change that was accepted and acknowledged as necessary by the works council.

However, in order to monitor employee compliance with the ban, the employer conducted random breathalyser tests of staff across all parts of the business as a matter of course, without any regard to suspicion or suspicious behaviour.

As a general rule, the implementation of measures and technical systems for monitoring staff which have an impact on personal dignity, requires a “plant agreement”. (A plant agreement is an agreement concluded between the works council and the employer on issues permitted by law or by the applicable collective bargaining agreement). Such agreements are one of the most important tools of a works council since they facilitate the operation of agreed terms between the employer and the work council.

In the current case, the employer had not sought a plant agreement in order to gain work council agreement to the carrying out random breathalyser tests of staff . As a result, the works council brought proceedings to suspend the testing and challenge its validity in the absence of its consent.

In the proceedings the employer argued that the measures implemented (ie alcohol checks/ breathalyser-test) did not impinge upon personal dignity. However, the Austrian Supreme Court disagreed, finding that the random use of a breathalyser did have a relevant impact on the personal dignity of staff. Accordingly, the interests of the employees and the need to respect their physical integrity and privacy were found to take precedence over the interests of the employer and its desire to ensure compliance with its alcohol policy through the random conduct of alcohol checks, regardless of any suspicious facts.

In light of the court’s ruling, random alcohol checks of staff by employers require the prior conclusion of a plant agreement between the employer and the works council, if they are to be lawful in Austria. If a plant agreement has not been concluded (and no consent has been obtained from the affected employee in plants where no works council has been established), such measures are unlawful and invalid.