When can an employer dismiss for alcohol consumption in Germany?

A dismissal related to alcohol consumption is subject to strict requirements. Alcohol consumption or alcohol abuse can justify a dismissal based on misconduct. In serious cases even a summary dismissal (fristlose Kündigung) might be possible. But if it comes to alcohol addiction we deal with a medically recognized sickness and the employer can only dismiss due to incapacity. This article explains the requirements for such dismissals, what you can do about it and when a severance pay is realistic.

Alcohol consumption vs. alcohol addiction

The requirements for a dismissal related to alcohol are different, depending whether the employee suffers from clinical alcohol addiction or just engages in controllable alcohol abuse.

Alcohol addiction is medically classified as an illness in which the person concerned loses control over the drinking. The “loss of control” distinguishes addiction from mere alcohol abuse, where the person is still able to influence the consumption.

Alcohol abuse can lead to a conduct-based dismissal. Typical examples: the employee arrives at work in a drunken state or drinks while on the job. In such cases the employer can dismiss the employee based on misconduct.

Alcohol addiction, by contrast, is an illness. The employer can only issue an illness-related dismissal (more details in the next chapter).

Dismissal due to alcohol addiction

An illness-related dismissal for alcohol addiction is only justified, once the employer can proof the following requirements:

1. Negative health prognosis

The employer must prove a negative health prognosis (“negative Zukunftsprognose”). This means, that an employee is permanently unable to properly perform the work required by the contract. This may be supported by past absences or a drop in performance.

Failed therapies or refused treatment: if the employee has already been through several unsuccessful intoxication programs, or has refused therapies at all, this this an indicator of a negative health prognosis.

Risk of relapse: repeated relapses, even after successful therapy, support the assumption that the employee still suffers under the alcohol addiction.

2. Significant operational impact

The addiction must have a direct effect on the business operations, for example through:

• Drops in performance: regular need for substitutes due to illness-related absences, poor performances, need form colleagues to fix mistakes, and so on.
• Risk to colleagues or customers: in professions with a high safety risk, such as machine operators or professional drivers, alcohol addiction can put others at risk.
  • Professional drivers: even a low blood alcohol level might have serious consequences. Losing a driving license due to alcohol consumption or alcohol abuse can justify a dismissal.
  • Pilots, doctors, machine operators: the safety of patients, passengers or colleagues comes first. The risk posed by alcohol addiction is often enough to support a dismissal based on sickness or incapacity.
• Operational disadvantages: production losses or reputational harm to the company’s reputation by the employee’s conspicuous conduct.

3. Balance of interests

When dismissing an employee for alcohol addiction, the employer has to carefully weigh their own interests against those of the affected employee. Key factors include:

• Length of service and age: long-serving and older employees enjoy greater protection.
• Alternative jobs: can the employee work in a less demanding or lower-risk position?
• Reasons for the addiction (e.g. illness or divorce) are not considered in favour of the employee.¹

Conduct-based dismissal for alcohol consumption

A dismissal for alcohol abuse requires misconduct by the employee. Unlike addiction, alcohol abuse is not an illness, but a controllable behavior. That means employees are accountable for the consequences of their drinking. The employer must prove the following requirements:

1. Breach of duty

Alcohol consumption in the workplace is considered as misconduct if it has a negative impact on the work performance or causes safety risks. It is irrelevant whether the consumption took place during working hours or before in your spare time. The only determining factor is the impact on work. Here some examples, when alcohol abuse constitutes a breach of duty:

• Poor job performance: the employee is not (properly) performing the duties required by the contract.
• Colleagues or third parties are at risk: especially in safety-critical jobs, such as machine operators or professional drivers, even small amounts of alcohol can create serious risks.
• Violation of workplace rules: repeated breaches of a company alcohol ban, particularly where an explicit rule exists in the employment contract or a collective works agreement.

2. Written warning

A conduct-based dismissal usually requires a prior written warning (Abmahnung). The purpose of the warning is to make the misconduct clear to the employee and give a chance to rectify it:

• For a first-time offence or less serious breaches of duty, a warning is required. Example: an employee arrives at work in a drunken state, but never has such issues before.
• Exception: Only in exceptional cases a warning may not be necessary, e.g. if the breach is so serious that it permanently undermines the relationship of trust. Examples: An employee behaves aggressively towards co-workers due to alcohol abuse.

3. Balance of interests

Even with a conduct-related dismissal, the employer has to weigh the parties’ interests at the time of dismissal. The continuation of the contract beyond the agreed notice period must be unreasonable for the employer. The employer must consider the severity and frequency of the breaches of duty, any disruption to business operations, and any damages that may have resulted. On the employee’s side, prior conduct, the length of unblemished service, maintenance obligations, marital status are relevant. Each case must be decided on it’s individual circumstances.

Summary dismissal: alcohol abuse as a serious breach

A alcohol related summary dismissal (fristlose Kündigung) is only justified in exceptional cases. As it is the harshest sanction in German employment law, the legal hurdles are high. Employees should always ask for legal advice in such cases as formal or substantive mistakes are common. You will find more details in our article on summary dismissals. Here the requirements just in a short overview:

1. Serious reason

A “serious reason” exists where the employee’s drinking leads to serious breaches of duty, which makes the continuation of the employment until the end of the notice period unreasonable for the employer.² Some examples:

• The alcohol abuse endangers the safety of the workplace.
• The alcohol consumption causes serious trouble amongst staff or has a negative impact on the proper running of the business.
• The employer must expect further misconduct due to alcohol abuse.

2. Deadline and formalities

Once employers become aware of the relevant facts for a summary dismissal, they must dismiss the employee within two weeks.³ The employee must receive the dismissal within this deadline. The employer hast to prove that.

The dismissal must be in writing.⁴

3. Balance the interests

The employer must balance the employer’s and employee’s interests against each other. Continuing the employment until the end of the notice period must be unreasonable. The more serious the breach, the greater the employer’s interests and vice versa.

Before dismissing an employee, the employer has to consider all less severe measures (e.g. a written letter, a transfer, a ordinary dismissal).

Drinking in your spare time

Alcohol consumption during your spare time is generally a matter of your private life. There are exceptions, when drinking outside working hours has an impact on the work performance or workplace safety:

• Residual alcohol is still present the next morning: even if the alcohol consumption happened during your spare time, residual alcohol at work can impair your concentration or reaction time.
• Frequent absences: drinking that leads to repeated sick leaves or unexcused absences can trigger written warning or in more serious cases dismissals.
• Poor performance: if the alcohol leads to poor performance at the workplace, the misconduct or the incapacity might lead to legal consequences.

In these cases, the employer will often issue a written warning before things escalate to a conduct-based dismissal.

How to challenge a dismissal for alcohol abuse

If you receive an alcohol related dismissal, it is critical to act quickly. It is advisable to ask for advice by an attorney specialized in Labour law or a trade union.

Chances of a severance payment

There is no statutory obligation to pay severance pay. But it is always advisable to enter into negotiations or to initiate legal proceedings. Employers prefer a quick settlement. Your chances of a severance are particularly good in the following scenarios:

• Formal errors: for example, the works council was not properly consulted, or the two-weeks-deadline has lapsed.
• Poor evidence: the employer cannot prove the alcohol-related breach of duty.
• Dismissal is disproportionate: less severe measures such as a written warning, support for therapy, transfers etc. would have been possible.

Employees should seek legal advice to improve their chances of severance pay.

FAQ on dismissal for alcohol use

1. LAG Rheinland-Pfalz 27.03.2008, 10 Sa 669/07 ↩︎
2. Section 626 BGB ↩︎
3. Section 626 subsection 2 BGB ↩︎
4. Section 623 BGB ↩︎