It is common knowledge that employment law can be mild for employees and equally harsh for employers. The Arnhem-Leeuwarden Court of Appeal recently made this clear once again when it answered the question whether the municipality of Epe was entitled to summarily dismiss a public servant after he had turned up drunk at a (digital) meeting.

What happened?

The employee was an official of the municipality of Epe and had previously been involved in a drink-related incident. At the time, the official had been stopped by the police while driving under the influence. His driving licence was confiscated on that occasion. Shortly afterwards, he was arrested for driving without a licence. He then sought treatment. As a last chance, the municipality gave him another job at a lower level, which he accepted. The official had been forewarned, and yet some time later he again reoffended by attending a (digital) meeting while drunk. On that last occasion, the employer summarily dismissed him. The Court of Appeal annulled that dismissal because it was found that he had an addiction. It counted strongly against the municipality that it had misjudging the signs of the addiction.

Addiction and illness

The fact that addiction is readily equated with illness is by no means newsworthy. The principal rule in the event of illness is that a two-year ban on termination applies. This ban on termination does not apply in the case of (lawful) summary dismissal; summary dismissal during illness is therefore possible.

What did the Court of Appeal find in this case?

In this case, the addicted public servant relied on the ban on termination on the grounds of a disability or chronic illness. That was a step too far for the Court of Appeal, because the public servant did not meet the strict standards for termination on that ground. The Court of Appeal merely weighed the circumstances involved. In interviews after the first incident, the official had stated that he was not an alcoholic, but that he could not control his drinking and that he had registered with an addiction clinic and sought treatment. He also cited a (childhood) trauma. According to the Court of Appeal, that should have been reason for the municipality to wonder what exactly was going on. The municipality should not simply have relied on the information provided by the public servant, because there were sooner grounds to assume addiction problems. A “diligent employer” should in any event have questioned the official more closely and should also have engaged the company doctor (again) to find out what was going on. In light of the course of events, the municipality could have suspected the existence of a structural alcohol problem. That investigation could have been based on the STECR Werkwijzer Verslaving en Werk (Addiction and Work Practice Guide). This guide was written for company doctors and insurance medical advisors, but can also offer guidance to employers in interpreting and discussing the signs of addiction in their organisation.

The Court of Appeal took into account that the official had worked satisfactorily for about three years and had been given good appraisals. The official furthermore argued that his incapacity for work prevented him from looking for work and that the chances of finding new employment were extremely small. After weighing up the nature and seriousness of the urgent ground against the other circumstances of the case, in particular his addiction, the Court of Appeal ruled against the municipality. It was held against the municipality that it had failed to make use of the possibility of further medical investigation into the employee’s impediments.

Conclusion

It is hard to accept that the municipality was told that it should not have relied on a public servant’s statements that he was not addicted. The Court of Appeal appears to have disregarded the fact that a company doctor may not simply pass on medical data to the employer; addiction problems are covered by medical secrecy. And although it is sensible for an employer to pursue a clear and recognisable alcohol and drugs policy, it goes without saying, on the other hand, that the use of (addictive) substances by public servants and possession of alcohol and drugs at the town hall is prohibited, even without that being written anywhere.

With the benefit of hindsight, the municipality would probably have had better chances of success if it had summarily dismissed the employee after he was found to be driving under the influence, or after he had taken to the road without a driving licence. In those two consecutive situations, not only a clear criminal standard was at stake, but also the violation of the broader integrity standards of a “diligent public servant”. If those standards had been taken into account in weighing the interests involved, the outcome might have been different.

The lesson that can (again) be drawn from the Court of Appeal’s ruling is that the duty of care for employees who are struggling with an addiction goes far, but it remains a question of balancing the interests involved. The glass is therefore not entirely empty for employers, because addiction is not covered by an absolute ban on termination. Each case calls for a customised approach.

Please contact Michiel van Haelst (+31-6-553 944 87)  for more information or advice on this subject.

This article was published in the Newsletter Vestius of September 2022