Smoking policies

Q We are thinking of making our office and surrounding areas a smoke-free zone. Is there any current legislation that would enable us to do this or prevent us from doing it?

A From 6am on 1 July 2007, legislation is introduced that will make all public places in England – including workplaces (with a limited number of exceptions) smoke free. However, even before the introduction of new legislation, there are already existing laws that affect an employee’s right to smoke in the workplace.

The Health and Safety at Work Act 1974 requires employers to do what is reasonable and practicable to ensure the health, safety and welfare of their staff. There is a great deal of research that confirms the harmful effects of passive smoking, and in the vast majority of circumstances, it will be reasonable to ban smoking in working areas.

There are also European directives, including the Management of Health and Safety at Work Regulations 1999, and the Workplace (Health, Safety and Welfare) Regulations 1992. The latter, while not prohibiting smoking at work, does require that where rest areas are provided, there must be non-smoking areas. During breaks, employees are entitled to smoke-free air – although the same does not apply while working.

Q Is it lawful for an employer to ban smoking in the workplace and surrounding areas? Does an employee not have the right to smoke?

A In the case of Dryden v Greater Glasgow Health Board, the Employment Appeal Tribunal (EAT) held that the employer was not in breach of contract for introducing a no-smoking policy. The EAT held that, despite the fact that the no-smoking rule had impacted harshly on one particular employee, this did not in itself mean the employer had acted in such a way as to repudiate the contract with the employee. This will be the case where the rule is introduced for a legitimate purpose – in this case, the protection of the health, safety and welfare of all staff.

Q Is an employer under an obligation to prevent smoking in the workplace?

A Currently, there is no legislation in place that requires an employer to prevent smoking. However, an employee forced to work in a smoky environment could resign and sue their employer for constructive dismissal, alleging a failure to provide a safe and healthy working environment.

In 1997, a former law firm employee did just this, claiming her employer had forced her to work in a smoky environment. The tribunal upheld her claim, and an appeal by her employer was unsuccessful. The tribunal concluded that it was an implied term of every contract of employment that the employer will provide and maintain a working environment that is reasonably tolerable to all staff. This applies to the quality of air an employee breathes while they are at work.

Q If we want to introduce a no-smoking policy, how do we go about it?

A The first step is to consider how far you want and need the policy to go. Do you want to introduce a complete ban on smoking both inside and around the premises? Alternatively, would a partial ban be sufficient, prohibiting smoking on work premises, but allowing employees to take smoking breaks during the day?

One factor in this decision may be the views of the workforce, which could be established via an employee survey. An employer will also be influenced by the impact of employees’ smoking habits on the day-to-day functioning of the business. Staff who take frequent smoking breaks are often less productive, losing as much as 30 minutes’ work a day. If this is a particular problem in your organisation, then a total ban may be more appropriate.

When you have decided on the extent of the ban, consultation with employees is key. Placing a complete ban on smoking both inside or outside the workplace requires a significant culture change, and enforcing this without consultation will lead to a disgruntled section of the workforce. Employees who have received significant warning of a ban being imposed and had full opportunity to express their views on it will be much more likely to accept it without strong complaint. It is important that you do not try to rush this process.

Q We do not allow our staff to smoke in the workplace, but do allow smoking breaks in the morning and afternoon. But these breaks are becoming longer and more frequent. Is there anything I can do about it?

A Consider the hours of work as set out in the terms and conditions of employment. It is unlikely there will be provision in the contract for smoking breaks, and this will be something that has built up as a practice over time. If that is the case, you will not be breaching an express term of an employee’s contract, but need to consider whether such an arrangement has become implied in to the contract by custom and practice. Even where this is the case, you are not prohibited from varying this custom, but need to do so following a period of consultation. Remember, there is no law that requires an employer to give staff time to smoke.

With that in mind, they should be reminded of their contractual hours and advised that the organisation has noticed that smoking breaks have become too long and frequent, which will not be allowed to continue. Clear guidelines should be laid down explaining when they are allowed to take breaks, and the maximum duration. Five minutes in the morning and five minutes in the afternoon should be sufficient. Employees should be given notice that these guidelines will be enforced from a date in the near future and that, once in force, the guidelines will be strictly adhered to. Employees should be left in no doubt that abusing the entitlement will result in disciplinary action.

By Helen Badger, associate solicitor, Browne Jacobson

December’s issue of Employers’ Law looks at what employers are doing ahead of the smoking ban, and gives advice on what to include in your no-smoking policy.


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