JUST HOW RELIABLE ARE BREATH-ALCOHOL (‘BREATHALYSER’) TESTS?

Being under the influence of alcohol at work cannot be tolerated in any workplace.

Some employers set the bar higher by adopting a ‘zero-tolerance’ approach with regard to the mere presence of alcohol in an employee’s system.

Breath-alcohol (‘breathalyser’) tests are commonly used as a measuring tool in both instances.

But just how reliable are these tests?

· A breathalyser test can be a useful screening tool for access to the workplace.

· Breathalyser tests are permissible as evidence in disciplinary hearings and arbitration proceedings, but their evidentiary value is questionable.

· A mere breathalyser test, without corroborative evidence, is insufficient to prove that someone is under the influence of alcohol.

· A mere breathalyser test, without corroborative evidence, is insufficient to prove that someone has a certain percentage of alcohol in their system.

· A zero-tolerance approach to employees having alcohol in their system is only justified in certain circumstances.

· Where an employer has a zero-tolerance policy and a breathalyser result shows that an employee has alcohol in his or her system, the employee should be given the option to undergo a blood test before disciplinary action is taken.

· Employers should develop or review their zero-tolerance policies in light of the most recent case law.

Is a breathalyser test sufficient?

Employers sometimes use breath-alcohol testing instruments (‘breathalysers’) to test for the presence of alcohol on an employee’s breath and then try to use these results either as evidence that an employee has alcohol present in her or his system, or is under the influence of alcohol.

It has been held in several decisions that a mere breathalyser test, without corroborating evidence (e.g. blood test, or physical observation), is insufficient to prove that someone is under the influence of alcohol.

Yet, what about using the results as proof of the fact that alcohol is present in someone’s system?

This type of rule is mostly found in cases where the nature of an employer’s operations or an employee’s job requires the absence of any trace of alcohol or drugs.

The Samancor-case

The matter of Samancor Chrome Ltd and Willemse & Others (2023) LC involved an alleged breach of a strict company rule which provided that “a person shall be deemed to be unfit to enter the premises in the event that their breath-alcohol level exceeds 0.000 per cent”.

The company’s disciplinary code further provided that a positive test will be viewed as “gross misconduct” and may lead to “summary” dismissal on a first transgression.

False positives

On reporting for duty one day, Mr Willemse tested positive for a breath-alcohol level of 0,013%.

A second test with the same instrument confirmed the result, as did a third test with a different instrument.

He was dismissed.

At arbitration, Willemse did not challenge the validity of the rule, nor the procedural fairness of his dismissal but focused squarely on the substantive fairness thereof.

Based on the evidence of an expert and a subsequent negative blood test he had undergone, he argued that the test results submitted by the company were not sufficiently accurate to prove that he had broken the rule.

The expert had testified that the employee may have had alcohol in his system but that this could not have been as high as the breathalyser results showed.

In any event, so his testimony went, the chances were good that the results were in fact false positives as several factors may have affected these tests, including the fact that a person had not eaten for more than eight hours, or eaten any substance with a yeast content.

Not accurate and reliable enough

While the arbitrator understood the need for Samancor to use a method more “convenient for safety reasons” to check for intoxication, “the chairperson of the disciplinary hearing ought to have taken the laboratory results into consideration since those have more accurate and reliable results”.

The dismissal was accordingly found to have been substantively unfair. The upshot of the case is that employers cannot merely rely on the results of a breathalyser test to dismiss someone for alleged breach of a zero-tolerance policy.

The company’s application to the Labour Court for the award to be reviewed and overturned was unsuccessful.

Based on the evidence presented by Willemse, the court found that the chances were good that the breathalyser tests could have given false positive results and that, therefore, insufficient evidence of Willemse’s guilt existed.

Willemse did not challenge the validity of the company’s rule, nor the procedural fairness of his dismissal.

The result of the blood-alcohol test, taken together with the expert evidence, did not definitively establish that there was any alcohol in the employee’s bloodstream and instead produced a clinically negative result.

How accurate is a breathalyser test?

While there is some debate among scientists, lawyers and others about this, most studies appear to show that breathalysers are far less accurate compared to blood tests.

Questions

The Samancor-case raises a number of questions:

· Are breathalyser tests permissible in general?

Several cases involving the use of breathalysers have been heard by arbitrators and the courts, none of whom have suggested that they are not.

What has been doubted is their accuracy and, therefore, evidentiary value.

On their own, they do not provide sufficient evidence that someone is under the influence of alcohol or has a certain percentage of alcohol in his or her system.

· When is a zero-tolerance approach justified?

It is for the employer to prove that such a rule is valid.

Reasons could include the high-risk nature of the employer’s operations or of particular jobs to which the rule applies.

Examples include employees working at altitude, driving heavy vehicles or operating dangerous equipment.

· Are breathalyser tests permissible in cases where a company has a zero-tolerance policy?

Nothing on the case suggested that this is not permitted.

To rely on such a test, evidence must be led on the type of test used and how it was administered (i.e. according to relevant guidelines or protocols); that the device was in good working order; and that those administering the test were trained to do so.

Despite this, however, their evidentiary value to prove that someone is either under the influence of alcohol or has a certain percentage of alcohol in their system is questionable.

· What could the employer have done differently in this case?

It would appear that two options remain if an employer wants to test for compliance with a zero-alcohol rule: first, raise the level of tolerance to 0,010% (which is the minimum measurable by a blood-alcohol test) so that a breathalyser can be used in combination with a blood test, or use the breathalyser test merely to regulate access to the workplace.

Conclusions and recommendations

A breathalyser test can be a useful screening tool, but an employee should not be disciplined (either for being under the influence of alcohol or for having alcohol in their system), unless there is sufficient corroborative evidence.

A zero-tolerance policy with regard to the presence of alcohol in an employee’s system should only be implemented if justified, e.g. high-risk nature of the employer’s operations or of particular jobs.

Where an employer has a zero-tolerance policy and a breathalyser result shows that an employee has alcohol in his or her system, the employee should be given the option to undergo a blood test before disciplinary action is taken.

It would be advisable for employers to develop or adjust their zero-tolerance policies accordingly.

Barney Jordaan and Jan Truter