Employment law clinic: Smoking at work

The Challenge: Sian is a heavy smoker. Lately, she has taken to
smoking at her desk, in addition to the occasional cigarette break outside the
office. Her employer, Fumes plc, does not have an official smoking policy, but
is considering restrictions or even a total ban – particularly since Carl, who
shares an office with Sian, has made several complaints about the effects of
passive smoking. Stefan Martin, an employment partner at international law firm
Allen & Overy, considers some of the legal and practical implications

Contractual issues

There is no express right to smoke at work, subject to the contract of
employment stating otherwise. However, Fumes plc will have to take care with
the introduction of smoking restrictions, especially if it chooses to enforce a
total ban. There is a danger that if a ban was introduced overnight, Sian and
other smoking employees could resign and claim constructive dismissal.

However, if Fumes plc introduces restrictions for a legitimate purpose –
such as the creation of a smoke-free environment – and in a reasonable manner,
consulting with the workforce and allowing smokers time to adjust, then this
type of claim is unlikely to succeed (Dryden v Greater Glasgow Health Board,
1992, IRLR 469).

Carl appears to have a legitimate complaint in relation to passive smoking.
He could rely on an implied term in the employment contract that Fumes plc
would provide staff with a working environment reasonably suitable for the
performance of their contractual duties, so far as is reasonably practicable
(Waltons & Morse v Dorrington, 1997, IRLR 488). If Fumes does not respond
to Carl’s complaints and Sian’s smoking creates an unacceptable working
environment, he could claim constructive dismissal.

It is uncertain, however, whether this implied term extends to creating a
completely smoke-free environment. If Sian’s smoking in the office is very
infrequent and Fumes can show that it has provided a well-ventilated office
environment, arguably, it has fulfilled its contractual duty.

Health and safety

Fumes has various health and safety obligations. These include providing and
maintaining a working environment that is without risks to health, so far as is
reasonably practicable (s2(2)(e) Health and Safety at Work Act 1974). This duty
of care, along with the requirement to assess risks to employees’ health and
safety at work (Management of Health and Safety at Work Regulations 1999),
could extend to passive smoking in the workplace.

If Fumes decides to restrict smoking areas rather than introduce a total
ban, it must take care not to infringe health and safety laws that require rest
areas to include suitable arrangements to protect non-smokers from discomfort
caused by tobacco smoke (Reg 25(3) Workplace (Health, Safety and Welfare)
Regulations 1992). This could be done by providing a separate area for them, or
ensuring shared areas are well ventilated with designated smoking and
non-smoking sections.

Human rights

Sian could argue that an onerous smoking ban (extending to social events at
work, for example) infringes her right to respect for private and family life
as provided for under the Human Rights Act 1998. Although not enforceable
against private employers, this could be used to bolster a constructive and
unfair dismissal claim, showing that the new policy was unfair.

However, the right to respect for private life is not an absolute right. It
must be balanced with the rights and freedoms of others. Any interference with
this right could be justified, provided it is for a necessary, proportionate
and legitimate reason. This could include employee health and safety and
maintaining the organisation’s image.

HR issues

The introduction of a written smoking policy at work would help clarify
company rules. When formulating the policy, Fumes plc should consider:

– Canvassing opinions through a workplace survey and consulting with staff
and, where appropriate, their representatives, on the contents of any proposed

– Allowing a reasonable period of notice (the Health and Safety Executive recommends
a few months) to allow smokers to adapt to the restrictions

– Providing workers with information on support for giving up smoking and,
if appropriate, offering counselling services

– Specific reference to the disciplinary consequences of breaching smoking
restrictions or bans

– Regular monitoring and, where necessary, the provision of training on the
operation of the policy.

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