Smoking at work

December 20, 2013 5:07 pm Published by

Can an employer ban smoking at work?

Yes, and they should ban it inside the workplace. Smoking has been legally banned inside workplaces for years now and to smoke or allow it is a criminal offence. But much more of a problem is the smoking outside, the familiar sight of smokers just outside the building or just off the premises. Is there anything the employer can do about stopping that? Do employees have the legal right to smoke there? And can they take extra breaks in order to do so?

An employer cannot make an employee give up smoking in their own time and away from work. An employer is allowed to decide not to recruit smokers, and in fact can advertise for non-smokers, though it may be hard to do anything about it if that employee later starts smoking in their own time. There will be very few jobs where smoking in private life is relevant enough to the job to give the employer any reason to get involved.

Employees do not have the right to take extra breaks for smoking, even if they go outside. There is no requirement to give time for smoking breaks in addition to the set breaks from work which the law requires for everyone. Employers are increasingly imposing limits on the amount of time or number of breaks employees are allowed to take for the purposes of smoking in order to control productivity and to prevent resentment arising on the part of non-smoking employees. It adds up: 10 minutes twice a day is more time off than going home an hour and a half early once a week.

Can employees smoke outside on work premises, in their own time? Employers with suitable outdoor spaces are not obliged to permit smoking on their premises at all. Employers are free to impose a complete ban on smoking on their site, inside and outside.

Can employees smoke off the work premises, in their own time? Some employers prohibit employees from smoking on the pavement or steps outside the workplace, even in their own time, because of the mess and unprofessional appearance. However, employers should think carefully before changing the rules about the effect on smokers, who may be addicted. Such policies may effectively prevent smoking at all during the working day. Employees suddenly faced with such a ban could seek to argue that they have at least an implied right, through custom and practice, to smoke somewhere during their breaks, although it is not yet established that there is such a legal right. As usual, before a rule is made it is wisest to talk to employees about the problem and possible solutions before deciding what is best to do, rather than issue a rule and need to either ignore it or tone it down afterwards.

Enforcement can be tricky. Generally, even if smoking outside, on or off the work premises, has been allowed up until now, an employer can decide to stop it as part of reasonable management control. In order to enforce it though, in other words to deal with someone who smokes in breach of such a rule, the employer should make sure that staff are clear as to what is allowed and what is not and what may happen. Rules made have to be followed consistently, by all staff of whatever level, and if they have not been followed in the past then a clear message needs to go out that they will be enforced from now on. It is unfair to suddenly make an example of someone or to discipline staff who have been allowed to get away with it. A clear message, consistently implemented, paves the way for fair enforcement if necessary.

Livewell Suffolk is a great resource to suggest to smokers. Government funded and accessible. Take a look on their website. Suggesting that smokers get such support will make clear that the needs of smokers have been taken into consideration.

Perhaps tightening up on smoking at work would be a good New Year’s resolution for everyone?

The above is inevitably general advice only and action should not be taken before taking specific legal advice.

If you need advice with new smoking rules or any other employment matter, we shall be very pleased to hear from you in 2014. For more information contact Frances Barker 01473 343911 or frb@blockslegal.co.uk

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This post was written by Frances Barker