In a recent case on October 20, 2016 (case reference: 6 AZR 471/15), the Federal Labour Court (BAG) ruled that dismissal without notice may be justified against a truck driver whose blood was found to contain traces of amphetamines or methamphetamines (crystal meth) during a police check.

Not unusual so far.
What is interesting, however, is that the truck driver had taken the drugs in his private life.
A few days before he got behind the wheel again.
The driver had taken the drugs on Saturday and started driving again the following Monday.
The police check took place on Tuesday.

Driving (dis)ability is not important

According to the BAG’s press release dated 20 October 2016, the court did not even consider whether the driver was fit to drive on Monday or not.
The typical dangers of driving a truck were sufficient in the opinion of the BAG.
A weighing of interests ultimately led to the termination without notice being justified.

It will be interesting to see how the court justifies the decision in detail and whether further conclusions can be drawn from it for other drugs (e.g. cannabis).
Generally speaking, contrary to what many people assume, not every use of illegal drugs justifies dismissal.
Of course, such drugs are prohibited by law.
However, whether it also constitutes a breach of duty under employment law if an employee takes drugs during or before work is a completely different question.

General prohibitions under labor law not always enforceable

There is no general prohibition under employment law and it depends on the balance of interests.
If the activity is associated with particular risks and therefore requires the highest level of attention, the employer may prohibit the use of any drugs.
This also applies to alcohol!
Often, the employers’ liability insurance associations also issue corresponding bans.

For the truck driver, the situation is therefore still relatively clear.
Similarly for a surgeon.
For less dangerous jobs, such as simple office work or as a night porter in a hotel, an absolute ban on alcohol and drugs is likely to go too far.
Small quantities do not yet have such far-reaching consequences.

However, there is a large area in between where the legal situation is less clear.
If there is no absolute prohibition, there is only a breach of duty if the employee’s performance is impaired to such an extent that they are no longer able to perform the work owed.
As a rule, however, a warning is then required before dismissal.

Ensure clear regulations in the company

It turns out that the legal situation is often not as clear-cut as it seems at first glance.
Employers should therefore ensure that they establish clear rules in their companies.
In individual cases, it must be checked how a ban on drugs and alcohol can be structured.
However, employees should also not accept a warning or dismissal due to drug use unseen, but should have it thoroughly checked whether it is worth taking action against it.