Employment law: smoking ban special

The smoking ban has been a hot issue ever since last year’s ruling that England would become smoke-free on 1 July 2007.

But research conducted in October 2006 by Personnel Today’s sister publication, IRS Employment Review, suggested that nearly half of all employers would have to change their smoking policies to comply with the new legislation.

So with just a few days to go, have employers managed to douse the flames in time?

Here, we have smoked out all the key stats and figures from our recent coverage in Personnel Today, Employers’ Law and on PersonnelToday.com, to give you a snapshot of how business has been dealing with the ban so far.

Smoking and discrimination

“Employers need to consider whether it is appropriate to refuse to employ smokers or ex-smokers. Although there is no smoking protection legislation under which individuals could argue they have been discriminated against during recruitment, they may have recourse under existing discrimination legislation.

“So employers need to guard against the risk of inadvertently triggering a disability discrimination claim by refusing to employ a smoker.”

Ranjit Dhindsa, partner, Reed Smith Richards Butler

“It is common practice in the US to avoid hiring employees who smoke or are ex-smokers, due to healthcare cost considerations.

While nicotine addiction is not covered by the Disability Discrimination Act 1995, disabilities that are a consequence of smoking habits are covered, which can give rise to claims.

“It is also possible that employees might try to claim under other types of discrimination law – for example, by alleging that smoking is a habit associated with older workers, or with certain religious groups (the prevalence of smoking among male Muslims is almost twice as high as the rest of the population).”

Naomi Feinstein, partner, Lovells


Employers need to be careful that their smoking policy is consistently and effectively enforced. Arbitrary implementation of the ban – for example, penalising some employees more than others for smoking – could lead to claims for breach of mutual trust and confidence and constructive dismissal. Additionally, employees who are dismissed or disciplined for highlighting breaches of their employer’s no-smoking policy can claim whistleblowing protection.

Smoking policies should:

  • State why the policy has been introduced and confirm that it complies with the Health Act 2006 and accompanying regulations

  • Apply to all employees and others using company premises, including visitors

  • Explain clearly where, if anywhere, smoking is permitted

  • Remind all employees of the rules on rest breaks if employees who smoke take longer breaks than others, this can lead to resentment

  • Warn of the consequences of a breach

  • Support any employee who wishes to give up smoking.

Pre-ban smoking cases

No right to smoke at work

In Dryden v Greater Glasgow Health Board, an employee resigned after her employer implemented a complete smoking ban. She complained of constructive dismissal. The Employment Appeal Tribunal (EAT) held that there was no right to smoke at work during work hours.

Unfair dismissal for smoker

In Marks & Spencer Plc v O’Connell, the EAT confirmed that the dismissal of an employee for smoking at work was unfair, even though she admitted to having broken an explicit rule that prohibited smoking in or near the workplace, which stated that breaches would result in summary dismissal. The EAT held that dismissal was too harsh a penalty. In particular, M&S justified the policy on the grounds of health and safety, but the EAT found no evidence of fire risk, as the employee was smoking outside the store.

Dangers of passive smoking

In Waltons & Morse v Dorrington, a non-smoking employee complained on a number of occasions to her solicitor employers that the firm’s smoking policy did not sufficiently deal with the fact that she was being subjected to the dangers of passive smoking. Her complaints were met with a refusal to consider a complete ban, she was told to “accept it or leave”, and the EAT held that she had been constructively dismissed.

“Our smoke-free legislation will produce the single biggest improvement in public health for a generation. Currently, only 51% of the workforce enjoys a totally smoke-free environment. This legislation will increase that number to more than 99%. An estimated 3.7 million businesses and workplaces in England will be directly affected.”

Caroline Flint, public health minister

Smoking in numbers

73% of employers would choose a non-smoking candidate over a smoker.
Source: YouGov

72% of employers do not plan to offer support to employees who wish to give up smoking.
Source: YouGov

34million working days are lost in England and Wales through sickness absence caused by smoking.

22% believe the ban on smoking will boost productivity among employees.
Source: Gee

36% of employers plan to ban smoking breaks.
Source: Gee

70% of employers plan to stop staff from smoking at the front of their premises.
Source: Gee

76% of employers have vowed to fine or take other disciplinary measures against staff in breach of the smoking ban.
Source: Gee

50% of UK employers claim the ban has made them more aware of the importance of their employees’ health. Source: Manpower

20% of employers are providing their staff with advice on how to quit smoking.
Source: Manpower

83% A study from Ireland, where smoking was banned in March 2004, has reported an 83% reduction in air pollution and an 80% cut in cancer-causing agents in pubs.
Source: The Research Institute for a Tobacco-Free Society

40% of managers think employers have a duty to help employees stop smoking if they wish.
Source: YouGov

63% of employers believe employees who smoke do not present a good company image.
Source: YouGov

59% of employers think that turning smoking rooms into facilities to improve employee health and wellbeing is a good idea.
Source: YouGov

40% Healthcare costs for smokers are as much as 40% higher than those for non-smokers.

45% of all employers will have to change their smoking policies to comply with the new law.
Source: IRS Employment Review

Did you know?

The ban covers not just tobacco, but any other (illicit) smoking substances.

In a radical departure from the basic principle that going to jail results in a loss of rights and privileges, prisoners will still be able to have a cigarette in their cells, while prison wardens will only be able to look on with envy.

There is no legal obligation for employers to provide facilities for smokers.

Legal Q&A: What about the rights of smokers?

There is no legal right to smoke at work, although workers are entitled to a rest break of at least 20 minutes for every six hours of work. Neither is an addiction to nicotine recognised as a ‘disability’ under the Disability Discrimination Act 1995. If smoking is going to be accommodated on and after 1 July, employers will have to provide ‘smoking shelters’ for their employees. They will need to ensure that such external shelters are not ‘substantially enclosed’.

Q What if employees or visitors smoke in defiance of the ban?

A If it is reported that individuals are smoking within the enclosed premises as a result of you failing to actively enforce the ban, then you could face fines of up to £2,500. Make it clear to employees that if they smoke in the premises (or allow others to), it will be considered a disciplinary offence.

If you have a difficult customer who insists on smoking, draw their attention to your no-smoking signage and inform them that it is an offence for them to continue to smoke. If they continue to smoke, you could then refuse to serve them and, failing that, ask them to leave the premises. If they refuse to leave, then your usual procedures for dealing with anti-social/illegal behaviour on your premises would apply.

Individuals who insist on smoking in smoke-free premises could be convicted of a criminal offence, punishable by a fine in the magistrates court or by a fixed penalty, which can be issued by an authorised officer of an enforcement authority. Officers from the local authority are to patrol in plain clothes to enforce the ban.

Q Who else is going to police the ban?

A The Smoke-free (Premises and Enforcement) Regulations 2006 provides a list of designated enforcement authorities. These include a unitary authority, district council and London borough council. A phone line (0800 587 1667) will also be in operation to allow members of the public to report potential breaches of the law. The matter will then be referred to the local council.

Q If an employer fails to take steps to ban smoking, can it be taken to a tribunal?

A Employees can raise grievances and claim constructive dismissal if their working conditions are hazardous. There are also risks of whistleblowing and personal injury claims.

Q Can employers do anything to get round the ban?

A In short, no. Outside ‘smoking shelters’ are the only option. To ensure these shelters are not ‘substantially enclosed’, they must be no more than 50% enclosed along the sides (including the roof), and the sides of the structure need to be substantially open.

Q Can I still smoke in a company vehicle?

A Where the vehicle is used primarily for private purposes then the ban does not apply, but if the vehicle is used by any other passenger or driver for work, then the ban will apply, and smoking in the vehicle will be prohibited.

Which legislation says that smoking is unlawful?

The Health Act 2006 is the main legislation, although details of what is and is not allowed are fleshed out in secondary legislation.

The Smoke-free (Premises and Enforcement) Regulations 2006

These regulations set out definitions of ‘enclosed’ and ‘substantially enclosed’, and the bodies responsible for enforcing smoke-free legislation.

The Smoke-free (Exemptions and Vehicles) Regulations 2007

These regulations set out the exemptions to smoke-free legislation and vehicles required to be smoke-free.

The Smoke-free (Penalties and Discounted Amounts) Regulations 2007

These regulations set out the levels of penalties for offences under smoke-free legislation.

The Smoke-free (Vehicle Operators and Penalty Notices) Regulations 2007

These regulations set out the responsibility on vehicle operators to prevent smoking in smoke-free vehicles and the form for fixed penalty notices.

The Smoke-free (Signs) Regulations 2007

Did you know?

  • Indoor smoking rooms will not generally be allowed, so smokers will have to go outside – unless, that is, you work on an offshore oil rig, where the dangers of lighting up by the oil pump mean that indoor smoking rooms are still very much allowed.

  • While no-smoking signs of a minimum A5 size must be clearly displayed in premises, signs in vehicles – provided they are put in a prominent position – can be as small as you like.

  • The maximum fine for failing to prevent smoking in a smoke-free place may only be £2,500, but that applies each time a cigarette is lit. So allowing someone to smoke a pack of 20 could, in theory, result in a far more sizeable £50,000 penalty.

  • Sacking someone because they smoke in their spare time would be an unfair dismissal, yet in the US, it is a very different story. Twenty states give employers the right to sack employees who smoke away from work in their own time.

  • Further information and guidance

    How to help your workers quit

    Policy clinic: guidelines on what to include in your no-smoking policy

    Smoke signals: what the smoking ban means for employers

    Smoke-Free England

    Public health campaigning charity Ash

    NICE guidelines on smoking

    Clean air award

    Advice from the Health and Safety Executive

    Advice from Acas

    How to promote dialogue around a company’s new smoke-free status

    UK smoking law resource centre

    NHS Smoke-free

    Webcast: It’s Smokin’!

    Watch a video on the smoking ban. Legal editor Dawn Spalding and Hammonds’ solicitor Clare McNicholas discuss the ins and outs of the ban, while James Garner of Caterer & Hotelkeeper magazine talks about its impact on the hospitality industry.

    More online

     Legal Q&A: UK smoking ban

    Legal dilemma: The building’s landlord is planning to convert our smoking area into a private members’ club to overcome the ban. Would staff still be entitled to smoke in this part of the building?

    Doctors in Northern Ireland oppose plans to allow actors to smoke on stage

    Employers plan to get rid of cigarette breaks

    One in five employers in England provides staff with advice on quitting smoking

    Wales and Northern Ireland stub out workplace smoking

    Smokers take eight more days’ sick leave a year than non-smokers

    Head-to-Head: Smoking ban in England comes under the spotlight

    Bosses fume over plans to make them pick up the tab and give smokers paid time off to kick habit

    Paid time off to help smokers quit is a ‘ridiculous proposal’

    Ignoring smoking ban will lead to a flood of claims by employees

    Smoking is not the only addiction that must be tackled in the workplace

    Contributors: Addleshaw Goddard, SA Law, Lovells, Taylor Wessing, Reed Smith Richards Butler, and Wedlake Bell.

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