MADSEN v. DENMARK
Inadmissible
Christos Rozakis
The applicant, Hans Eigil Madsen, is a Danish national, who was born in 1974 and lives in Glostrup. He is represented before the Court by Mr Harlang, a lawyer practising in Copenhagen The respondent Government are represented by their Agent Mr Hans Klingenberg, the Ministry of foreign Affairs. The facts of the case, as submitted by the parties, may be summarised as follows. From 25 April 1998 until 23 May 2000 the applicant was employed, notably as a passenger assistant by a Danish shipping company, henceforth called DFDS (Scandinavian Seaways), and he was a member of a trade union, henceforth called DSRF (Dansk Sø-Restaurations Forening). In his employment the applicant had no responsibility for the primary operation of the ship but as a crewmember he was involved with the safety on board. At the relevant time he worked in shifts of 16 days at work on board followed by 8 days of leave on land. DFDS had issued a circular on 15 April 1993 laying down that all staff on board had to submit to an alcohol test if so required by the authorities or the shipping company/shipmaster. On 11 June 1999 DFDS issued a new set of regulations concerning its staff policy on alcohol and drugs which inter alia stated that when on duty on board the employees were allowed a blood alcohol level of 0.2 per mille and when on leave on board 0.4 per mille. When on board the employees were not allowed to be in possession of or use drugs or any other intoxicating substances or have any remains thereof in their bodies traceable by a urine test. A passage headlined “control” stated: “By request of authorities, the Captain or DFDS all employees are under an obligation to submit to tests for alcohol, drugs or any other intoxicating substances. The employees can expect to undergo such a test without notice at least once a year.” A passage headlined “violation of these regulations” stated inter alia: “A violation of these regulations will be regarded as a considerable breach of the conditions of employment and can lead to immediate dismissal...” A copy of the regulations was distributed to the employees who were requested to sign it thereby confirming that they have read and understood it. In the summer of 1999 DFDS introduced random mandatory alcohol and drug test requiring the person concerned to provide a sample of urine. In letters of 6 July and 2 August 1999 DSRF and another trade union henceforth called RBF (Restaurationsbranchens Forbund) informed DFDS that they could not approve of the new set of regulations. Thus, a conciliation meeting was held on 28 July 1999 between the employer and the said trade union, but the parties failed to reach an agreement. On 15 September 1999 the applicant, allegedly without any kind of suspicion, was requested to provide an urine sample behind a screen in a room in which a person from a British company called Medscreen, hired for this purpose, was present. It appears that no trace of alcohol or drugs was found. DSRF and RBF instituted civil proceedings against DFDS before a Court of Arbitration claiming that DFDS should acknowledge that the control procedure introduced by the regulations of 11 June 1999 was wrong and that accordingly, despite any given signature the employees could not be obliged to provide a urine sample. Among other arguments they claimed that the random urine tests were in breach of Article 8 of the Convention. On 23 February 2000 the Court of Arbitration found for DFDS. In its decision the Court stated: “Since a majority could not be obtained amongst the arbitrators the case will be decided by the president who states: Pursuant to case law and practises in labour market matters the right of management encompasses the right to issue regulations justified by operational considerations. Likewise, the management have a right to introduce measures of control justified by operational considerations if such measures have a reasonable purpose, do not offend the employees’ dignity, and do not cause any loss or appreciable inconvenience for the employees. It is undisputed that alcohol is a legal stimulant and drugs are not, though in Denmark the possession of hashish for ones own consumption is seen as a minor offence. The presence of drugs on board might in certain countries lead to the detention of the ship or to other sanctions against the ship, which is one of the reasons why the merchant navy prohibits any possession of drugs on board. The past regulations [of 1993] issued by DFDS solely authorised a control measure with regard to the employees’ alcohol consumption. It appears that the past regulations were not objected to and, as the case has been presented before the Court, it is mainly the test introduced [in 1999] for drugs and other intoxicating substances that caused the present dispute. It is undisputed that on two occasions within the last half year two employees have been in possession of and used drugs. The testimonies heard before the court substantiate that some employees on board have used drugs as a stimulant, which must be considered a serious problem. Therefore, DFDS do have a justified reason for introducing measures of control suitable and contributing to solve this problem. The consumption of alcohol will usually be traceable by the smell or by using a breathalyser. This is not the case when it comes to drugs or any other intoxicating substances. Taking a blood sample would require the consent of the person concerned. It is indeed very difficult simply by observation to ascertain whether a person has used drugs and a clinical test does not with sufficient certainty provide an indication of the employee’s ability to perform his or her duty. Thus, providing a urine sample is a possible measure of control. There is no substantiation for assuming that DFDS uses the test for any other purposes than to control the employees’ consumption of alcohol and drugs. No information is provided as to whether the samples are stored, and in the affirmative how, but any extension of the test, be it on the basis of a sample already submitted or of future tests, do require that the employees are informed. Also such an extension may be brought before a Court of Arbitration for review. The employees do not suffer any loss as the test is submitted to during working hours. The control measure introduced by DFDS applies to all employees on board including the Captain. X testified that the test is performed in a room in private. Thereafter the urine sample is handed over. In this way the test cannot be considered to expose the individual’s decency. In addition, since everybody is obliged to submit to the test the individual’s honour cannot be considered infringed. The plaintiff has submitted that the test infringes the employees’ spare time, as it will reveal which activities the employees have been involved in. However, an employer must be entitled to demand that an employee coming to work is capable of performing his or her duties. Accordingly, this entails some limits on the employees’ spare time before coming to work. However, having regard to the fact that the consumption of alcohol and the use of drugs, unless taken on a regularly basis, do not leave traces for more than one or two days, the Court does not find that the measure in question infringes the right to respect for private life to such an extent that random tests thereby should be excluded. The employees’ rotation system whereby a leave on board is followed by a leave off board does not reverse this finding. The Chemical-Legal Institute (Retskemisk Institut) has stated that besides from reducing learning and memory, using hashish might reduce one’s psychomotor functions up till 24 hours when doing complex tasks. Perhaps no problems will occur when doing the daily tasks that the plaintiff’s members perform. Nevertheless, as all crew members are part of the safety crew, though rarely needed, it is absolutely essential that they are, in a fully adequate way at all times, able to perform functions related to the safety on board, which in case of a catastrophe might entail complex tasks. Accordingly, operational considerations do justify that the defendant introduced the control measure in question. The fact that no survey has been carried out as to the customers expectations to the safety on board does not reverse this finding since, having regard to the latest catastrophes on ships in the Nordic oceans, a customer has a right to assume that the shipping company aim to have as much safety on board as possible, and that the company makes sure that its crew members can perform their safety tasks in a fully adequate way. The regulations in question contain a passage according to which a violation will lead to immediate dismissal. The defendant cannot unilaterally by introducing such a passage change the required conditions for a dismissal, and a given signature by an employee on the regulations does not entail that such a change has been accepted. However, with regard to a possible dismissal the defendant did in fact express in the pleading that the burden of proof falls upon the shipping company.” Below is a general description of the Danish industrial relations system, also known as the “Danish Model”. The struggle at the end of the 19th century between on the one side employees and their unions (notably what is today called the LO, i.e. the Danish Federation of Trade Unions) and on the other side the employers and their federations (mainly the central organisation DA, i.e. the Danish Employers Confederation) resulted in the so-called September Agreement from 1899 between the LO and the DA. The Agreement laid down five major principles: 1. the right of employees to organise in trade unions; 2. the right of the employers to manage and control work; 3. the right to industrial actions (strike, boycott and lockout) to obtain e.g. a collective agreement; 4. the embargo on industrial action which means that no strikes are lawful during the term of a collective agreement; 5. the establishment of a special arbitration tribunal to deal with all violations of the September Agreement. The September Agreement is unique in that it has formed the basis of all subsequent general agreements between social partners. By tradition the Danish legislature plays a minor role as regards governing wages, salaries and employment conditions. Accordingly, rights imposed by statute in other countries have in Denmark been obtained by agreements between the labour market partners. It is thus characteristic of Danish law that the relationship between employers and employees is basically governed by a combination of agreements (collective and individuals), labour law principles and general statutes and rules laid down in pursuance of statutes. Thus, according to the “Danish Model” the content and scope of an employer’s managerial right or his right to carry out control measures depend on labour law principles in so far as it is not governed by any agreements or by statutes or rules laid down in pursuance of statutes. Disputes between the labour market parties are, failing friendly settlement, finally determined by either courts of arbitration or by the Labour Court depending on the dispute in issue. Control measures. As stated above, the September Agreement from 1899 acknowledged the employer’s right to manage and control work. The right to carry out control measures was acknowledged firstly in a decision by a Court of Arbitration from 1913, and confirmed by subsequent case law. According to the said case law, the following guidelines have been characterised as reasonable control measures: 1. The control measure may not be unnecessary, but must serve a sensible purpose. 2. The form of it may not be humiliating for the employees. 3. It may not cause any loss or significant inconvenience. 4. It must be possible to submit the justification of the measure to industrial arbitration. 5. When a control measure has proved expedient and has been practised on the majority of the company employees, it can be extended to cover the rest of the staff. 6. The employer should notify his staff as early as possible of any contemplated control measure. 7. Employees shall - at least in so far, cf. point 4 above - observe the employer’s requirement of introduction of a control measure, and the trade union may be held responsible if it supports any resistance. 8. The collective agreement need not include any authority for the introduction of control measures. If a regular scheme has been laid down in the collective agreement, the employees may reject changes during the term of the agreement if they have a legitimate interest in raising such objections. 9. Normally there is no obligation to compensate the time spent in connection with a control measure because such obligations only exist if the measure results in “undue delay” to the employees. 10. No claim can be made to leave salaried employees (masters, foremen) out of the search scheme. 11. Control measures (in particular searches) must be carried out correctly and unassailably, but not necessarily by persons who are independent of the employer. 12. Controls of women (searches) must be carried out by women. Act on Use of Health Data. Act no. 286 of 24 April 1996 on Use of Health Data etc. on the Labour Market (Lov om brug af helbredsoplysninger på arbejdsmarkedet) defines the situation in which an employer is entitled to request health data and does not exclude any specific testing method. The explanatory notes to the Bill forming the basis of the Act (L 13 of 4 October 1995) gives a detailed account of the scope of the Act. The notes state partly which situations are comprised by the Act, partly which situations fall outside the Act. Among other thing is stated (see para. 3, section C, of the general explanatory notes of the Bill): “This Bill does not affect the employer’s right to institute general control measures affecting employees, e.g. in the form of tests to detect the abuse of alcohol or drugs, provided that such tests are not intended as health examinations”. It is further stated (see the special explanatory notes to section 1 of the Bill): “In certain cases a personal examination is in the nature of a control measure in which no data on diseases or symptoms of a disease is requested. This is the case, inter alia, when an employer wants to check by blood sampling whether an employee has alcohol in his blood in contravention of the employment contract. In such cases the employee will most often have signed a declaration to the effect that he is willing to submit to such checks. Other stimulants than alcohol may be involved. Such examinations fall outside the scope of the bill to the extent the individual measure is not also intended to procure data on diseases or the risk of developing or contracting a disease. Whether such prohibition and the pertaining checks are justified is a general question under employment law.” ILO The ILO joint Maritime Commission adopted in 1991 a resolution concerning drugs and alcohol in the maritime industry. Moreover, the joint ILO/WHO Committee on the Health of Seafarers adopted in 1993 the Guiding Principles on Drugs and Alcohol Testing Procedures for Worldwide Application in the Maritime Industry. Based on the ILO Convention no. 73 on the Health of Seafarers, which entered into force on 1 August 1955, Denmark has adopted a number of legal provisions as well as an executive order (no. 903 of 28 September 1999) concerning medical examination of seafarers, the purpose of which is to ensure, having regard to the safety of the vessel and the safety and health of everybody on board, that the seafarers’ health is satisfactory. Pursuant to the said executive order the consequence of the use of drugs or hashish or abuse of medicine or alcohol is absolute rejection irrespective of the relevant person’s function on board the vessel. The Seamen’s Act Pursuant to the first sentence of section 59 (3) of the Seamen’s Act (cf. Consolidated Act no. 766 of 19 September 1995) bringing drugs and other toxic substances on board a ship is prohibited. Pursuant to subsection (4) of the same provision, the shipmaster may subject the seaman’s recreation room to a search if he has reasonable grounds for suspecting that something illegal has been brought on board. The seaman is entitled to be present at the search. The provision is supplemented by section 17 (1)(iii) and (vi) of the Act according to which a shipmaster can dismiss a seaman if he offends grossly while on duty by repeated intoxication, or if the person in question conceals on board dutiable goods or goods prohibited as export articles at the place of departure or as import articles at the place of destination. According to Danish case law, a single incident of gross intoxication may lead to dismissal. However, in a recent judgment of 12 April 2002 (published in the Weekly Law Journal (Ugeskrift for Retsvæsen