A recent case before the French Supreme Court acts as a stark warning to employers of the importance of complying with the requirements in the French Labour Code to display their internal rules in the workplace.

After the discovery of empty bottles of alcohol in the employees’ changing room, an employer required one of its employees who had to operate machinery as part of his role to undergo alcohol testing on the company’s premises. This measure was expressly authorised by the internal rules of the company.

After testing positive for levels of alcohol, the employee was suspended and then dismissed for serious misconduct on the ground that he had been inebriated at work.

He challenged the lawfulness of his dismissal on the basis that the internal rules of the company authorising alcohol testing in the workplace had not been displayed in the workplace, as required by Article R.1321-1 of the French Labour Code.

Controversially the French Supreme Court has upheld the employee’s claim. It said that as the employer had not fulfilled its statutory obligations to display the internal rules of the company in the workplace then any measure established or authorised by such rules could not be imposed on employees.  Logically the testing had therefore been without contractual consent, and so unlawful, and so its result could not be held against the worker.  The Court concluded that the employee’s dismissal because of his positive test for alcohol was therefore “inevitably without fair cause”.

This is despite the fact the employee’s actions could have posed a health and safety risk to other members of the workforce, as well as himself and even though the employee could not conceivably have considered that the failure to display the rules as required meant that it was therefore OK for him to operate machinery while under the influence. It seems that the highest court in France placed the individual rights of the employee above the collective security of the workplace, an inglorious triumph of form over substance.

Lessons for employers

The French Supreme Court’s decision to adopt a strict application of the law means that employers should be careful to comply with the requirements of the French Labour Code to display the internal rules of the company in the workplace. Bear in mind that the rules only come into force one month after this has been done.  The Code also requires employers to provide a copy of the rules to the relevant office of the Labour Relations Board (“greffe du Conseil de prud’homess”).  It is not clear whether a failure in this wholly administrative respect also would have led to the same outcome here, but it cannot be a risk worth taking!