Smokers not protected by disability law

Roger Byard
Partner, employment team, Cripps Harries Hall

One morning shortly before Christmas, Sophie Blinham arrived at the offices of Dataflow Communications in Wells, Somerset, to start her new job. Just 45 minutes later, she was unemployed. As she was being shown around, her new employer had asked if she was a smoker. On admitting that she was, Blinham was shown the door because Dataflow only employs non-smokers.

Blinham said she was considering suing Dataflow, but it seems unlikely she will get very far. It is well-known that employees have no statutory protection against unfair dismissal until they have worked for the same employer for a year. Before achieving that milestone, an employee can be dismissed for any or no reason at all.

The only basis on which Blinham could bring a claim would be if Dataflow’s action was discriminatory, because where discrimination is alleged, no qualifying period of employment applies.

There are no laws that directly prohibit discrimination against smokers, so it is doubtful a claim that refusal to employ Blinham because she was a smoker would be held to be discriminatory. Addictions are regarded as self-inflicted and are specifically excluded from being treated as a disability.

A Dataflow spokesman, seeking to defend the company’s decision, said: “We want healthy employees and we believe a non-smoker is healthier than a smoker.”

This might be seen as discriminatory against people who have health problems associated with smoking, such as lung or heart disease. It is to be hoped that for 21-year-old Blinham, it would not be the case that she could allege disability discrimination. Even if such circumstances applied, any disability must have been caused by, or at least significantly contributed to, by smoking and the dismissal would have to be related to the disability and not just because the person smoked.

Ironically, Blinham’s youth might give her an advantage. Statistically, young women are proportionately more likely to smoke than young men. So to dismiss her because she smoked could be considered to be indirect sex discrimination.

Smokers frequently claim that work rules which prevent them from smoking infringe their human rights on the grounds they breach their right to respect for private and family life.

However, even if an employee was able to show that this human right had been infringed, it is likely that this would be outweighed by concerns to protect the health of other employees.

In the absence of any effective statutory protection or available remedies, Blinham can only look to her common law rights. As an employee, she was entitled to a minimum period of notice to terminate her employment (at least one week), and if she was not paid the amount due to her for her notice period, then she would have a claim for breach of contract.

Blinham might also have a claim for damages on the basis that she was induced to give up her previous job by reason of a material misrepresentation of fact by Dataflow. Its spokesman claimed that “[the company’s] policy of employing only non-smokers was well documented”. If, as Blinham says, she was not asked at her interview whether she smoked, she could reasonably assume that she could work for Dataflow provided she did not smoke in the office.

However, even if she could show the misrepresentation gave rise to a claim in damages, the amount she could recover would be limited to her losses for any period of unemployment. Given that she would be at risk of amassing legal costs, she would be better advised to mitigate her losses by finding another job.

This case highlights the vulnerability of employees during the first year of their employment. It raises the question once again whether statutory protection for unfair dismissal should start from the moment the contract of employment comes into effect.

Learning points for HR

  • Workers employed by ‘mistake’ have no remedy unless there is some form of discrimination.
  • Disability discrimination does not protect smokers.
  • A smoker’s ‘human right’ to smoke at work is outweighed by concerns for the work environment.
  • Employers that want to recruit only non-smokers should be clear about their reasons for doing so.

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