Are smoking customers a smoking gun?

Smoking in offices is almost a thing of the past. But many workers, particularly those in the hospitality sector, are still exposed to smoke on a daily basis. Balancing the wish of some customers to smoke with adequate protection for employees is never easy, but employers cannot afford to ignore the wellbeing of their employees.

Total bans on smoking in public places have been implemented in New York, Ireland and Italy, but in the UK, the change may be triggered by a different force. It may be litigation, rather than legislation, that finally puts an end to smoking where people work.

Recent press reports of a barman with breathing difficulties suing his former employer over the effects of passive smoking have highlighted a new pressure on the hospitality sector to address serious issues surrounding smoking at work. Regardless of whether this particular barman succeeds, one day, someone in a similar position will, and employers across the country – whether in the hospitality industry or not – will be forced to review the extent of their own risks.

For some time, employment law has provided employment rights to certain workers who do not wish to be subjected to smoke. In Waltons & Morse v Dorrington [1997] IRLR 488, a secretary in a firm of solicitors successfully claimed constructive dismissal after her employers failed to adequately deal with her concerns about exposure to smoke. The tribunal held that there was an implied term in every contract of employment to “a reasonably suitable working environment”. The difficulty, of course, is that while it is quite clear that a reasonable working environment in, for example, a solicitor’s office would be smoke-free, in a place where customers want to smoke, the situation is very different. What is reasonable in a solicitor’s office may not be reasonable in a bar, restaurant or train.

Personal injury litigation may change all this. To successfully bring a claim for personal injury, an employee must show that:

  • the employer failed to provide a safe system of work
  • this failure led to the employee’s injury
  • the injury was foreseeable.

Obviously, not every employee with health problems will be able to prove that they were caused by exposure to smoke. Nevertheless, inevitably there will be an employee who can provide medical evidence linking their condition, of say breathing difficulties or lung cancer, to exposure to smoke. If they were not exposed to smoke in their personal life, it will not be too difficult to establish that the cause was passive smoking at work.

It would also be relatively simple to show that this injury was foreseeable. The real question will be whether the employer provided a safe system of work.

The only sure way of ensuring staff cannot successfully bring complaints about the effects of passive smoking would be to ban customers from smoking, but this may prove easier in some workplaces than others. What, for example, would be the fate of cigar bars?

Accordingly, many employers will want to look at workable alternatives to a total ban. These might include banning smoking at the bar, having clearly-marked smoking areas, and providing powerful ventilation.

Taking precautions may assist in two ways. Most importantly, they may protect the health of employees, making claims less likely to arise in the first place. Also, if any claims are brought, the employer may have a defence that, in the circumstances, it did provide a safe system of work.

It will be interesting to see what attitude will be taken by the courts. It is hard to imagine a court finding in favour of an employer who allowed smoking in an office.

At the other end of the scale, if it did not find in favour of a cigar bar that had taken reasonable precautions, a court would effectively be banning smoking in all workplaces without the legislation.

Between these too extremes there are restaurants – where smoking is less socially acceptable than it used to be; pubs and bars – where smoking is still socially acceptable, but employers are tending to move towards smoke-free zones; and trains – where the smoking carriages could pose serious health risks to workers.

The message to employers is simple: if you wait for legislation, litigation may get you first. Precautions must be taken to protect employees from the effects of smoke at work. The only risk-free solution is to ban smoking completely but, if that is undesirable, then a suitable compromise will need to be found.

Daniel Isaac is principal of the employment group at law firm Withers LLP

Smoking – plans for the future

The Labour party manifesto addressed the issue of smoking in public. It largely reiterated the proposals set out in the government White Paper on Public Health published in November 2004. Labour ‘recognises that many people want smoke-free environments’, and legislation to achieve this is to be introduced gradually.

The proposals are:

  • By the end of 2006, all government departments and the NHS will be smoke-free
  • By the end of 2007, all enclosed public places and workplaces (other than licensed premises) will be smoke-free
  • By the end of 2008, specific arrangements for licensed premises will be in place.

The specific dates appeared in the White Paper rather than Labour’s manifesto, and the precise reference to government departments and the NHS did not appear on the manifesto.

Different rules will apply to licensed premises, depending on whether or not they serve food. All restaurants will be smoke-free, as will all pubs and bars where food is prepared and served. Other pubs and bars will be free to choose whether to allow smoking or not.

However, in an attempt to protect the health of employees, smoking in the bar area will be prohibited everywhere, regardless of whether food is served.

This, if introduced, should mean that a pub could choose to stop serving food and continue to allow smoking. Also, depending on the drafting of the legislation, a pub that serves food but does not prepare it (ie has it delivered) may be able to continue to allow smoking.

In membership clubs, members will remain free to choose whether to allow smoking or impose a ban.

The Labour manifesto also contains a promise to expand NHS smoking cessation services to support and encourage people to give up smoking.

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