Privacy Advisor

Global Privacy Dispatches- Netherlands- Employee Dismissal

December 1, 2007

By Richard van Staden ten Brink

Dutch Supreme Court Allows Instant Dismissal Because of Off-duty Drug Use

On Sept. 14, the Dutch Supreme Court ruled that the Hyatt Hotel and Casino in Aruba was allowed to instantly dismiss a waitress because of off-duty drug use.

Hyatt had implemented a drug-free workplace policy, which provided for random employee drug tests. After the waitress was selected randomly for a drug test and tested positive for use of cocaine, she was offered the opportunity to go into rehabilitation. She refused, after which she was fired.

The waitress contested the dismissal and argued, inter alia, that Hyatt had unlawfully infringed on her fundamental right to privacy (article 8 European Convention on Human Rights) by implementing a drug policy in which her off-duty drug use could lead to a positive drug test and to dismissal, while an adverse effect on her work performance had not been established.

The Supreme Court ruled that Hyatt‘s drug policy was lawful because it passed the tests of legitimate purpose, proportionality and subsidiarity. The legitimacy of Hyatt‘s purposes to maintain a good reputation and to attract guests was not contested. The Supreme Court ruled that the drug policy was proportional. Finally, the Supreme Court ruled that the drug policy passed the test of subsidiarity.

Richard van Staden ten Brink is advocaat at De Brauw Blackstone Westboek in Amsterdam. He may be reached at richard.vanstadentenbrink@debrauw.com.