Employers must take in new code on smoking

A code on smoking at work puts the onus on employers to control exposure or face constructive dismissal claims

The overflowing ashtray may be a thing of the past in the workplace but smoking is still very much a live issue for many employers.

The Government published a White Paper on smoking at work in December 1998. While it had no plans for a ban, it asked the Health and Safety Commission to consult on an Approved Code of Practice. Consultation has now been completed, with a substantial majority of respondents favouring such a code. A draft is now with ministers for a final decision .

The Health and Safety at Work Act 1974 imposes a duty on an employer to “ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees”.

The Workplace (Health, Safety and Welfare) regulations 1992 require that “effective and suitable provision shall be made to ensure that every enclosed workplace is ventilated by sufficient quantities of fresh or purified air”; also that “rest rooms and rest areas shall include suitable arrangements to protect non-smokers from the discomfort caused by tobacco smoke”.

The code will supplement these provisions and build on current HSE guidance in Passive Smoking at Work. It will not be an offence to fail to comply with the new code; instead the burden of proof will be on the employer to justify non-compliance.

The code will require employers to determine the most practical way to control tobacco smoke in their workplace. Top of the list comes a total or partial ban. If that is not possible then there are other options to be considered, such as segregation of non-smokers or a working system which minimises exposure.

Where smoking constitutes a clear hazard – as in proximity to flammable materials – employers are legally entitled to impose a ban. Where the argument for a ban is not so clear-cut there has, predictably, been litigation.

In Dryden v Glasgow Health Board, 1992, IRLR 469, a lifelong smoker argued unsuccessfully that she was unfairly constructively dismissed after a total ban, which included the car park. She contended for an implied right to smoke through custom and practice. But in Watson v Cooke, Webb & Holton, unreported, ETcase no 0230/95, a claim succeeded when a ban was introduced overnight without consultation.

In Singh v Walkers Snack Foods, unreported, EATcase no 0412/97, dismissal for breach of the no-smoking policy was held to be fair. In Marks & Spencer v O’Connell, unreported, EATcase no 0230/95, the employer was not so fortunate, dismissal for a first offence being considered outside the band of reasonable responses. Dismissal for a first offence should therefore be regarded as wholly exceptional.

In Waltons & Morse v Dorrington, 1997, IRLR 488, a non-smoker successfully argued that there had been unfair constructive dismissal when the employer ignored her complaints about smoke drifting from a smoking room into her no-smoking area.

By Nicholas Moore, head of employment at law firm Osborne Clarke OWA, which has offices in the City of London, Bristol and Reading

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