Court: dismissal not possible despite ‘zero tolerance policy’ and positive drug test

The employer seeks dismissal after the employee tests positive for cannabis use at the start of the working day. The employer has a ‘zero tolerance’ policy and the employee is responsible for quality inspections and safety in the workplace as part of his job. Yet the judge does not terminate the employment contract and the employee must be allowed to return to work. The judge ruled that the employer had jumped to conclusions too quickly.

The background
The employee works for a company that makes steel foundations for offshore wind farms. These are enormous structures that can weigh up to 2500 tonnes. The employer therefore has important safety regulations in place. Among other things, a zero tolerance policy is in effect that strictly forbids working under the influence of alcohol, drugs or medication. The employer has hired an external agency to conduct unannounced alcohol and drug tests on the employees. A drug dog and a saliva test are used for this.

One of the responsibilities of the employee in his position is to carry out quality inspections. This is an important task and, given the size of the structures, the consequences can be significant if these inspections are not carried out carefully.

Saliva test
On 25 September 2024, an inspection took place at the start of the shift. A saliva test is conducted on the employee after the drug dog sits next to him. The test is positive for cannabis. The inspector from the external agency stated that the employee had red eyes and was not thinking clearly. The employee admits to having used cannabis the night before, but claims that he is no longer under the influence.

Immediately afterwards, a meeting is held with two managers. Both individuals state that the employee has red eyes, appears dazed and has a strange grin on his face. After the meeting, the employee is sent home.

Dismissal procedure
The employer believes there are reasonable grounds for dismissal and initiates a dismissal procedure. Because the employee appeared at work under the influence of drugs, he has not complied with the zero tolerance policy. Heavy structures and vehicles are used at work. The employer must be able to assume that all employees comply with the safety regulations and do not engage in risky behaviour. Moreover, as a quality inspector, the employee has a supervisory role and serves as a role model. It is therefore particularly culpable that the employee has put the safety and reputation of the company at risk, according to the employer.

What does the judge say?
The judge understands the zero tolerance policy. Working under the influence of drugs carries safety risks. At the same time, the judge notes that the use of cannabis in private time cannot be prohibited. The decisive question is therefore whether the employee was still under the influence of cannabis when he wanted to start his shift.

The judge ruled that the saliva test should not have been conducted because it violates the General Data Protection Regulation (GDPR). The results of a saliva test are considered health data. The employer may only process this data if there is a legal basis for doing so. This is the case for some professions, but not for the activities of the employee in question. The result of the saliva test is therefore not proof that the employee was still under the influence of cannabis at the start of his shift. Since the employee had used cannabis approximately 11 hours before his shift, there should no longer be any influence on his performance, given the breakdown time of cannabis in the body.

Apart from that, the judge noted that a saliva test does show that a person has used cannabis, but does not show whether that person is still under the influence. The police therefore always conduct a supplementary blood test. That did not happen in this case. The result of the saliva test is therefore not proof that the employee was still under the influence of cannabis at the start of his shift. Because the employee used cannabis approximately 11 hours before his shift, there should be no impact on his performance, given the breakdown time of cannabis in the body.

This leaves the statements of the inspector and the two managers. They unanimously state that the employee had red eyes and was not thinking clearly. According to the judge, these statements also do not provide a conclusive answer as to whether the employee was still under the influence. Red eyes can have multiple causes and it is conceivable that the employee was nervous because of the inspection (with a drug dog) and the conversation with the two managers.

Conclusion
This case shows that there are strict conditions attached to conducting tests in the workplace. The judge can disregard the results of such a test, even if they are positive. It is also worth noting that the employer immediately sought dismissal, even though it was not clear whether the employee was actually under the influence at work. The employer failed to prove this. Ultimately, this will cost the employer dearly. The request for dismissal is rejected and the employee must be allowed back on the work floor. The employer must also pay the legal costs.