An article in the Financial Times announced that an insurance company was going to ban its employees from drinking alcohol during their lunch break, and anyone caught doing so could face penalties and even dismissal.
The introduction of these kinds of prohibitions in the context of employment relationships usually sparks heated debate from a legal standpoint given that they entail evident restrictions on the employee’s freedom, especially where the conduct in question takes place at a time and place in which the employee is not in fact working and cannot therefore be considered as working hours.
The Spanish courts have had occasion to evaluate cases where workers were disciplined for conduct outside their working hours, classifying as justified, terminations where, returning to the question of alcohol consumption, the conduct had an adverse impact on job performance and could be detrimental to the employer’s image (for example, in the case of a professional athlete, the judgment of the High Court of Extremadura of May 25, 2009) or where the conduct was considered a breach of contractual good faith (in the case heard in the judgment of the High Court of Murcia of February 22, 2016, in which the worker got into a crash, outside working hours, with the company car, which he was using with its consent, only causing property damage but doing so, according to the police report, while showing significant signs of being drunk).
In the same vein, and with respect to conduct engaged in outside working hours, the courts have considered that there are sufficient grounds for a justified dismissal where the conduct gives rise to or causes damage to the company (in the case heard in the judgment of the High Court of Madrid of February 17, 2009, in which an employee caused an accident by playing, outside working hours, with a company forklift) or where the worker, in a situation of temporary incapacity, insults and threatens his supervisor (judgment of the High Court of the Canary Islands of March 10, 2004).
However, a dismissal is classified as unjustified in the case of a theft committed outside working hours, despite the fact that knowledge—acquired as a result of the employment relationship—of the location of the place where the events occurred was used to commit the theft (judgment of the High Court of Castilla-La Mancha of November25, 2008).
In this realm, even collective bargaining offers us examples of definitions of curious activities which, if engaged in outside working hours, may be subject to penalties. For example, there are certain cases such as the one included in the collective agreement of a company engaged in gaming which penalizes establishing intimate personal relations with the company’s clients as a very serious infringement; the one contained in the collective agreement for the optical retail trade and related workshops industry, which contains in its list of very serious penalties, conviction for crimes of theft, larceny or misappropriation committed outside the company or for any other type of acts that may imply distrust; or the collective agreement for the textile industry which punishes with a very serious penalty the commission of immoral acts on the company’s premises, both during and outside working hours.
We find less surprising examples—although the imagination seems to know no limits when it comes to prohibiting things—where certain collective agreements prohibit conduct such as using mobile phones in unauthorized areas (service stations collective agreement) or smoking and eating at the work station (collective agreement for the nougat and marzipan industry).
And we even find actions falling outside the occupational sphere but which occur in the context of work such as writing or placing signs on the furniture or on the walls of the company’s premises, which are classified as very serious where the signs are offensive to the company or its employees (collective agreement for pulp, paper and cardboard) or discussing matters unrelated to work on the company’s premises, which may be classified as serious or very serious if the conduct causes an obvious scandal (collective agreement for the optical retail trade and related workshops industry).
The above makes clear that the company’s conduct, when restricting workers’ freedoms outside their working hours, and without prejudice to the standing it may have as a result of the collective bargaining, must comply with certain premises that evidence that the employee’s actions are or may be detrimental to the company’s image and integrity.
Meanwhile, and perhaps fearful of the consequences, British employees will start to ask for something other than a pint on their lunch break.
Garrigues Labor and Employment Law Department
