Barring smoking workers could land you in court

There is a growing trend for employers to ban staff from smoking at work. It stems from growing concerns regarding the health risks associated with active and passive smoking, and Government deliberations on outlawing smoking in public places. However, some employers have gone even further and refuse to recruit people who smoke whether at home or at work. But could this amount to discrimination?

Under current UK law, discrimination against employees or job applicants on grounds of sex, race, disability, sexual orientation or religious belief by employers is outlawed. However, there are no laws that directly prohibit discrimination against smokers.

On the face of it, there is nothing to prevent employers from refusing to recruit smokers. Unfortunately for smokers, the disability laws don’t lend a hand. Addiction to nicotine doesn’t count as a ‘disability’ because it is considered to be self-inflicted, and those with tattoos and body piercings are not protected by the disability legislation for the same reason. A smoker whose job application was rejected could only claim disability discrimination if they had other health problems associated with smoking, such as lung or heart disease, and that was why their application had been turned down.

What about the new laws banning discrimination on the grounds of religion or belief? Arguably, Rastafarianism counts as a ‘religious belief or similar philosophical belief’ under these laws, and some Rastafarians smoke marijuana for religious purposes. Bizarre as it may seem, there is potential for an employer who rejects a Rastafarian under its no-smokers policy to face a claim for religious discrimination.

Another option for those applying for a position within the public sector is to seek redress under the Human Rights Act 1998 by claiming that a no-smokers policy is a breach of their right to respect for private and family life.

However, in a recent case, the Privy Council rejected a doctor’s claim that the General Medical Council had breached his right to private life by making his continued practice conditional on absolute abstinence from alcohol and regular attendance at Alcoholics Anonymous meetings. It was held that the condition was justified because it was for the protection of health and the rights and freedoms of others.

In the same way, an employer imposing a no-smokers policy is doing so to protect the health of other employees, and may, therefore, be able to side-step a claim under the Human Rights Act.

Under the Health and Safety at Work Act 1974, employers are required to “provide and maintain a safe working environment which is, so far as practicable, safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work”.

There is separate legislation protecting pregnant workers and other groups that are recognised to be particularly sensitive to secondary smoke, such as asthmatics. This may include ensuring some or all of the office is smoke free and/or, where smoking is allowed, ensuring the areas as well ventilated as possible.

Culturally, attitudes towards smoking have shifted, and it has certainly become less acceptable within the workplace to the extent that a significant number of organisations have instigated smoking bans. However, employers should recognise that such policies may be unpopular with staff, and that for some they do represent a significant change to working practices. For this reason, employers should consult with staff before bringing in a total smoking ban, and should give staff reasonable notice of the change – three months’ notice is sensible for a major policy change of this type.

One particularly difficult area facing employers is the cigarette break. Employers must act reasonably towards their smoking employees, and respect their right to smoke outside the office if they want to. However, an employer can police the number and duration of breaks taken and consider disciplinary action if an employer is perceived to be abusing that right. It’s also reasonable to designate an outside area where staff may take their smoking breaks as customers and clients may be put off by large groups of staff smoking just outside the main office entrance.
As the issue of smoking in public places moves up the legislative agenda, employers are likely to have to make difficult decisions in a bid to appease the views of both smoking and non-smoking employees.

By Melanie Patton, employment law specialist, Eversheds

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