Information Note on the Court’s case-law 47

November 2002

Madsen v. Denmark (dec.) - 58341/00

Decision 7.11.2002 [Section I]

Article 8

Article 8-1

Respect for private life

Mandatory drug tests for employees: inadmissible

The applicant was employed as a passenger assistant on a Danish ferry from 1998 to 2000. Although his work was not directly concerned with the operation of the vessel, he was, like all crew memb ers, part of the safety crew. In 1999, his employer adopted new regulations concerning the possession or consumption of drugs or alcohol by staff when on board. These included the rule that any member of the crew, including the captain, could be obliged to submit to random urine testing at least once a year. Violation of the regulations on this matter would lead to immediate dismissal. All employees received a copy of the regulations and were required to confirm in writing that they understood them. Two tra de unions indicated their opposition to the regulations and instituted legal proceedings to overturn them. In September 1999, the applicant was requested to provide a urine sample behind a screen in a room in which the person hired to conduct the test was present. The test results were negative.

The Court of Arbitration ruled in favour of the ferry company, finding that the objective of the regulations was justified, they applied to all members of crew and that the manner in which the test was carried out d id not infringe the dignity of crew members or interfere with their lifestyles when on leave.

Inadmissible under Article 8 – The Court proceeded on the assumption that the obligation to submit to a urine test was an interference by a public authority withi n the meaning of Article 8 § 1. As to whether the testing was “in accordance with law”, the Court considered the specificity of the Danish labour model, the key principle of which is the autonomy enjoyed by the social partners in the field of employment an d industrial relations. The habitual form of regulation is therefore collective agreement rather than legislation. In the instant case, the Court considered that the regulations had been issued on the basis of the employer's right to control work, a fundam ental principle of Danish labour law recognised since the September Agreement of 1899 as well as in many subsequent collective agreements and in national case law. This legal basis was sufficient for the purpose of Article 8. The aims of the regulations we re legitimate: public safety or the protection of the rights and freedoms of others. As to whether the regulations were “necessary in a democratic society”, the Court referred to the clearly detrimental effect of alcohol or drugs on a worker's performance. It was absolutely essential for the safety of a ferry that crew members be capable of carrying out their designated safety functions at all times. Furthermore, it noted from the file that there was some evidence that other crew members had possessed or us ed drugs. As for respect for crew members' private life when not on duty (the working schedule providing for 16 days on-duty followed by 8 days off-duty), the urine test would only detect substances ingested over the previous 48 hours. Given that in the ye ar leading up to his resignation the applicant had been tested just once, the regulations were not applied in a disproportionate manner: manifestly ill-founded.

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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