“It is illegal to prohibit in a general and absolute manner” the consumption of alcohol in a French workplace, said the French State Council (“Conseil d’Etat”) in a judgment last month (n° 349365).

Article R.4228-20 of the French Labour Code provides that “no alcoholic beverage other than wine, beer, cider or pear cider is permitted in a place of work”.

However, given the employer’s over-riding obligation to safeguard the heath and security of its employees, certain companies have taken steps in their internal policies to simply prohibit any alcohol at all from being brought into or consumed within the workplace, even pear cider, which some might say should not be drunk anywhere anyway.

The Labour Inspectorate, to which internal policies must be submitted before they come into force, had asked this clause to be removed. The decision of the Labour Inspectorate was overruled by the Regional Labour Director, so one Works Council decided to seek the ruling of the administrative courts on the legality of this clause.  Was such a total ban on alcohol compatible with the expressly permitted exceptions in Article R.4228-20?

After a full 6 years of proceedings, with various decisions and judgments handed down on the way, the State Council found that the no-alcohol clauses “exceeded, due to their general and absolute character, the constraints that an employer may impose” and rejected the employer’s appeal.

The judgment says that the prohibition was not “justified” by any facts that demonstrated the existence of a particular danger or risk in that case. It must, therefore, be deduced from this that a complete prohibition would be well-founded if it were justified by the particular duties carried out by the employees or the particular activities of the company.  Cue considerable future debate about which work activities it would be reasonable to perform when under the influence.  We shall no doubt see soon whether there is at law a distinction to be drawn between exposure to alcohol leading to work being done badly on the one hand or actively dangerously on the other.