Poland: Supreme Court ruled that a breathalyser test carried out by an employer is not enough to take measures against an intoxicated employee

On the basis of art. 17 of the Polish Act on Upbringing in Sobriety and Counteracting Alcoholism, if there is a suspicion that an employee came to work in a state of intoxication, the employer or the employee himself/ herself may request a sobriety test to be carried out by an authorised body (e.g. the Police).

Nevertheless, it was a common practice that the employer would carry out a sobriety test with the use of a breathalyser belonging to the employer (with the employee’s consent), and inform the employee that they have a right to be tested by an authorised body upon their request. The employers would also take disciplinary action against the intoxicated employees on the basis of the sobriety test that the employed carried out directly.

On December 4, 2018 the Polish Supreme Court issued a sentence in which it claimed that it is the employer’s interest to examine the employee’s sobriety. The Supreme Court stated that in a situation when the employee does not request the sobriety test to be carried out by the Police, it is the employer who, not only may, but should, request such a test.

According to the Polish Supreme Court, it is the employer who bears the burden of proving that the employee has seriously violated basic employee duties, has committed a breach of order, or has contributed to causing an accident at work. Therefore, if the employer would like to take disciplinary action against intoxicated employees, the employer should request sobriety tests of the employees to be carried out by the Police (or other authorised body).

The Polish Supreme Court’s sentence might be considered as revolutionary in its matter, as it remains in conflict with the current employers’ practices in this field.