Employment law clinic: Smoking breaks in the workplace

Katherine De Souza, partner and head of employment at Marriott Harrison, answers questions on smoking breaks in the workplace.

Q Is a worker entitled to a smoking break?

A No, a worker has no right to a break specifically for the purpose of smoking. However, a worker who works more than six hours per day has the statutory right to a rest break of at least 20 minutes away from their workstation under the Working Time Regulations 1998. A worker may therefore use their statutory rest break to smoke outside the workplace, subject to any restrictions imposed by the employer on smoking outside workplace buildings. All enclosed workplaces are required by legislation to be smoke free.

Q Can an employer prevent a worker from taking a smoking break?

A An employer cannot prevent a worker from taking their statutory rest break. If a worker takes any breaks in addition to their statutory rest break and any contractual break, the employer can treat this as misconduct. In practice, most statutory rest breaks are taken in the form of a lunch hour.

Q How should an employer deal with resentment over smoking breaks?

A While the Working Time Regulations do not make a distinction between smokers and non-smokers taking rest breaks, employers often formally or informally allow workers to take smoking breaks in addition to statutory rest breaks or lunch hours. This practice can lead to resentment from non-smoking staff, who may perceive that their smoking colleagues benefit from additional breaks.

Any failure by an employer to deal properly with a grievance raised by a non-smoking employee may be a breach of contract, and thus lead to a claim for constructive unfair dismissal. An employer could either prohibit all breaks other than statutory rest breaks or lunch hours, or ensure that non-smoking staff have an equal number of breaks.

Q What should an employer do?

A Employers should adopt a policy on smoking in the workplace and amend their discipline policy to cover smoking breaks and smoking in a non-designated area. If employers wish to prohibit the use of e-cigarettes, or vaping, in the workplace, they should ensure that their smoking and discipline policies expressly cover e-cigarettes. As e-cigarettes produce a vapour when a liquid nicotine cartridge is heated, the use of e-cigarettes may not be covered by a prohibition on smoking.

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