Germany: Cocaine use in the workplace

The use of cocaine during working hours and on the employer's premises constitutes a serious breach of contractual obligations and is therefore an important reason within the meaning of Section 626 (1) of the German Civil Code ("BGB"). In a ruling by the, the court dealt with the extraordinary dismissal on suspicion of cocaine use at the workplace.

The subject of the decision was a legal dispute before the Oldenburg Labor Court. The parties disputed the validity of an extraordinary dismissal on suspicion. The plaintiff had been employed by the defendant since June 1, 2002. He had been an exempted works council’s member since 2018. On August 17, 2022, the plaintiff was observed forming a white powder into a line with a card at his desk in the works council office and then consuming it through his nose with a tube. When he was asked about the observation, the plaintiff replied that there was nothing to worry about and that the substance was not a drug. During the interrogation the plaintiff explained that the substance was snuff with glucose. He took a small bottle labelled "snow mountain" out of his office and held it out so that his counterpart could smell the bottle. When asked whether he would agree to a drug test, he replied that he did not know where this could be done and that it would certainly cost him a fortune, but he would think about it. A short time later, the defendant informed the plaintiff that they would cover the costs of the drug test. The plaintiff did not respond to this. By letter dated September 12, 2022, the defendant terminated the employment relationship for cause with the consent of the works council. The plaintiff filed a complaint against this.

Prerequisites for summary dismissal based on suspicion

The employment relationship can be terminated for good cause in accordance with Section 626 (1) of the German Civil Code ("BGB") if there are facts on the basis of which the terminating party cannot reasonably be expected to continue the employment relationship until the end of the ordinary notice period, taking into account all the circumstances of the individual case and weighing up the interests of both parties to the contract.

The suspicion of a serious breach of duty may also constitute good cause within the meaning of Section 626 (1) of the German Civil Code ("BGB"). Such a suspicion constitutes an independent reason for termination compared to the accusation that the employee has committed the offense. A dismissal on suspicion is deemed justified if (1) there are strong grounds for suspicion based on objective, concrete facts, (2) the grounds for suspicion are likely to destroy the trust required for the continuation of the employment relationship and (3) the suspicion is urgent, i.e. there must be a high probability that the suspicion is correct. In addition, (4) the employer must make every reasonable effort to clarify the facts of the case, and especially he must give the employee the opportunity to comment within a standard period of one week.

The decisive factor in the assessment under dismissal law in the event of a suspected dismissal is that there has been a breach of primary or secondary contractual obligations which is capable of destroying the relationship of trust with the employee. A criminal assessment of the breach of duty is not relevant.

Cocaine use as “Good Cause”

The use of cocaine during working hours and on the employer's premises constitutes a serious breach of contractual obligations.

According to the case law of the German Federal Labour Court (ruling of 20 October 2016, case no. 6 AZR 471/15), the employee has a secondary obligation not to put himself in a state in which he cannot fulfil his duties arising from the employment relationship or in which he can injure himself or others when performing his work. Even a restriction of the ability to perform work safely caused outside of working hours can constitute an important reason within the meaning of Section 626 (1) of the German Civil Code ("BGB"). This applies all the more to drug use during working hours on the employer's premises.

Violation of trust relationship

In the specific case, the plaintiff is strongly suspected of using cocaine during working hours and on the defendant's premises.

This was already supported by the method of ingestion, as this is typically used with cocaine - in contrast to snuff. The plaintiff's contradictory admissions as to which substance it was supposed to have been also support a strong suspicion that the specific substance was cocaine. The fact that the plaintiff refused a drug test, even when the defendant offered to cover the costs, or in any case avoided such a test, also supports the assumption that cocaine was used. By agreeing to a drug test, it would have been possible for the plaintiff to exonerate himself and completely disprove the suspicion of cocaine use.

The fact that the plaintiff was working on a draft company agreement on the day in question does not justify a different assessment. On the one hand, no conclusions were drawn about the quality of the work result. Secondly, after taking cocaine it is not inconceivable that the plaintiff was motivated to carry out his works council activities. Cocaine consumption predominantly triggers a feeling of euphoria, overconfidence, and speed. The showing and smelling of the vial that the plaintiff took from his office also does not invalidate the strong suspicion. Just under three weeks passed between the incident and the presentation of the vial. During this period, the plaintiff had sufficient time to prepare a story with corresponding evidence.

Hearing of the employee

In this specific case, the defendant fulfilled its obligation to clarify the suspicion as far as possible. In particular, the defendant heard the plaintiff sufficiently by giving him the opportunity to deny certain facts, limited in time and space, if necessary, or to point out facts that refute the suspicion. The defendant attempted to use every opportunity to gain knowledge in order to investigate the suspicion further. Since the plaintiff did not take a drug test, the strong suspicion of cocaine use remained, and the defendant did not need to make a further request.

Dismissal of a works council member

In the case decided by the Lower Saxony Higher Labor Court, there was the peculiarity under dismissal law that the plaintiff was a (released) works council member.

The termination of a works council member is inadmissible pursuant to Section 15 (1) of the Dismissal Protection Act ("KSchG") unless there are facts that entitle the employer to terminate the employment contract for good cause without observing a notice period and the consent required pursuant to Section 103 of the Works Constitution Act ("BetrVG") has been obtained or replaced by a court decision.

These requirements were met in this case, meaning that the plaintiff, as a (released) works council member, could be dismissed for good cause.

Significance for practice

As the German Federal Labor Court has already stated, employees secondary obligation not to put themselves in a state during or outside of working hours in which they cannot fulfil their duties arising from the employment relationship or in which they can endanger themselves or others when performing their work.

Especially in view of the partial legalisation of cannabis consumption, it is advisable to prohibit the consumption of addictive substances before or during working hours in a company directive or works agreement. As a protection, the agreement should also expressly include a corresponding provision for working from home or teleworking.

The decision of the Lower Saxony Higher Labor Court is likely to be of fundamental importance for all employees. The employee's status as a member of the works council is irrelevant.

In the specific case, the decision deals with the consumption of cocaine. However, the decision is also likely to be relevant with regard to cannabis or other drugs, regardless of whether they are legal or not.