To avoid disaster striking, ensure you have a clear policy on smoking breaks and that employees are aware of the consequences if they are not adhered to.
Whether employees have the right to smoke during their working day has been a source of great debate. So much so, that one of television’s most popular soap operas, Granada’s Coronation Street, dramatised the issue in front of millions of viewers. Here, employment law specialists offer insight into the legal standing of the parties involved in one of The Street’s most explosive storylines.
The situation
It is fag break time at the Coronation Street factory and the employees are outside smoking. Supervisor Nick is displeased, accuses one of the employees, Janice, of skiving and bans all unofficial cigarette breaks. Nick later bumps into Janice who has had a cigarette in the toilet and tells her that she can only smoke on her tea and lunch breaks.
“But I need nicotine, my body can’t wait,” Janice snarls. Nick then bans all smoking on company hours. Janice informs Nick of her rights, to which he replies, “Employers have rights, too!”
The need for a cigarette becomes too much for Janice, who pops into the stockroom. A storeman enters and Janice stubs out her cigarette and hides. The cigarette butt is not out, materials are set alight and the factory in engulfed in flames.
Can Nick ban cigarette breaks?
Hugh Calloway, a specialist in employee rights at Glanvilles Solicitors, says: “Regular fag breaks might have been incorporated in Janice’s employment contract. If this is the case, it is unlikely Nick has the right to change the contractual terms.”
Are employers obliged to provide time /facilities for smoking?
“There is no legal right for employees to receive a separate break for smoking,” says Dee Emberson, an employment law specialist at Trethowans Solicitors, Southampton. “Due to health concerns, most employers have gradually banned smoking in the workplace. Some have made concessions to allow fag breaks by either setting up a designated smoking room or allowing employees to smoke outside. Most employers allow this concession providing it doesn’t interfere with the running and performance of the company.”
Does Nick have the right to verbally ban all smoking?
“Accusing Janice of ‘skiving’ isn’t the most sensible approach, but Nick considers she is abusing her privileges,” says Emberson. “Providing Nick has the authority, there is nothing to stop him from verbally banning smoking, but I would have suggested a less confrontational approach. He should have invited all parties to discuss the issue and confirmed the agreed outcome in writing. There is no legal procedure he is required to follow, but it is sensible to seek the agreement of senior management before informing employees.”
Is Janice exercising her rights in persistent smoking?
“If Nick is supported by senior management and Janice continues to have fag breaks, she will be guilty of disobeying company policy, which could lead to disciplinary action being taken against her,” Emberson says.
“Even if Janice is exercising her contractual right, going behind the back of the manager might be construed as a breach of disciplinary rules,” agrees Calloway.
Is Janice liable for the fire?
“Janice is liable for causing the fire,” says Andrew Egan, head of employment law, Gardner Leader Solicitors. “She failed to properly extinguish her cigarette and would be liable in negligence. It could be argued, however, that management has contributed to the fire starting by failing to instigate a clear smoking policy.
“If Janice were to be sued for negligence, she could pursue her legal rights in an Employment Tribunal. Nick sought to unilaterally vary her contract terms without reasonable consultation or agreement with her. This would be a breach of contract and could, in other circumstances amount to constructive dismissal were she to resign as a result of his decisions.
“Janice may also claim harassment or victimisation regarding her nicotine addiction when compared to the treatment of the other smokers, or non-smoking employees. From this angle, it is not her fault that she felt she had to go to the stockroom to smoke because she did not appear to have any other choice.
“The Coronation Street factory should have had in place a specific and clear policy in relation to smoking at work and ensured that employees were aware at all times what the policy said and meant.”
