With the introduction of the controversial ban on smoking at work next year, should you be taking action now to ensure that you are not about to be the butt of jokes in the Tribunal? Should you be re-examining the effect of smoking on your workforce?

According to a survey conducted in 2004 by Imperial College London, about 30% of adults under the age of 65 smoke. An estimated 11% of people are exposed to tobacco smoke at work; approximately 700 people die from lung cancer, heart disease or stroke because of passive smoking at work. Anecdotally, smoking has long been held up as a reason for higher levels of absenteeism and lost productivity.

In March 2006 Scotland will follow the Irish Republic in implementing a ban on smoking in enclosed public places. England is set to follow with a partial ban in 2007 and detailed government guidance is expected for the hospitality sector which will be at the frontline of implementing this sea-change. But where does that leave other employers?

There has long been an expectation in the public sector that colleagues are entitled to enjoy a smoke-free environment. But what if your organisation has not yet kicked the habit? Are you one of the professional service firms where partners can puff away behind their office doors? Do you allow your customers/clients to smoke in your offices, but not your employees? Do you outlaw smoking in your building? And do your staff huddle on the doorstep to take their fag breaks?

Puffs of smoke – the myths which may blow your way

“But I am entitled to smoke here. I have done since I first started here.”

Contrary to the belief of many die hard “puffing billies” or “fag ash lils” there is no legal right as such to light up at work. However, the story does not end there. If smokers have been happily puffing away at their workplaces for years (as has happened in our experience in many City institutions, media and publishing houses, educational establishments – yes, really – and professional firms), that habit may have crystallised, in legal terms, into an implicit, unwritten contractual entitlement. It could be a breach of employment contracts to withdraw the right. Equally, it could be a breach of the employer’s duty of trust and confidence to force smokers into cold turkey. However, if the matter came to an Employment Tribunal (most of which are non-smoking buildings which gives you a clue to attitudes) it is likely that a Tribunal would weigh the greater benefit to staff as a whole of a smoke-free environment, against the dependence of a group of smokers, especially if non-smokers specifically wanted the change.

Indeed, non-smokers have been at the forefront of changing attitudes. In 1997, long before Tony Blair was getting round to his changes in the law, secretary Jill Dorrington sued a law firm, no less, Walton & Morse, on the basis that it was a breach of trust and confidence that she was forced to work in the vicinity of a heavily-smoking solicitor. The Employment Appeal Tribunal (the next tier above the local employment tribunal) agreed with her that she had been constructively dismissed as she had no option but to leave to protect her health, where the firm had failed to do so (see Dorrington v Walton & Morse, 1997).

Health and Safety legislation requiring employers to provide a safe place and safe system of work, and that employees should take care of their own and others’ help, would certainly seem to be on the side of the abolitionists.

“But smoking is an addiction and I need help ….”

Wrong. Or at least, not as far as employment law is concerned. The Disability Rights Commission code of practice, to be read in conjunction with the Disability Discrimination Act 1995, specifically excludes addiction to or dependency on nicotine from its scope. So employees cannot demand that you make reasonable adjustments to allow them to indulge their habit. That does not extend to the effects of smoking, though. By analogy with the case of Power v Panasonic (2003) where Mrs Power, a severe depressive, was entitled to the protection of the Act even though her depression had been brought on by alcoholism (an excluded condition), smokers who develop illnesses which are disabilities as a result of their smoking (e.g. severe asthma) can claim the Act’s protection and require adjustments to be made.

“I need time out to light up”

But what about fag breaks? Can an employee demand these? Actually not. Employees are entitled to their rest breaks under the Working Time Regulations 1998 (twenty minutes in every six hour period) but they cannot demand extra time, unless this has become a convention in the workplace which has taken on contractual force (see above).

“But it’s the pavement – I can smoke where I like!”

And what about those louche characters hanging around on the doorstep of the company’s fabulously expensive and glamorous headquarters in the City? Are they really your senior managers desperately getting a drag between meetings?

If you have a specific clause in contracts which prevents employees from smoking within, say, 10 metres of office premises, then this is probably enforceable and could be the cause of disciplinary action if breached. However, hold hard before you dismiss for repeated offences. Unless smoking on the doorstep also breaches health and safety, it is unlikely to be reasonable grounds for dismissal, as Marks and Spencer learned to its cost (around £9,000 in fact) when it was taken to the Tribunal by Mr O’Connell, a security guard who had been unceremoniously sacked when he nipped out for a quick puff on the pavement outside the Marble Arch branch.

“But you’re infringing my human rights if you stop me smoking!”

Human Rights legislation is unlikely to assist as an employer will be acting to protect the health and freedom of others in the workforce if it bans or restricts smoking. The principle of human rights law that allows nation states to implement certain laws in accordance with the principle of proportionality and in their discretion – permits governments to implement legislation which may be unpopular with some, but is for the good of the majority. In any event, if you are a private company, or plc, rather than a public sector employer, your staff could not bring freestanding human rights claims against the organisation in any event; it would have to be linked to the breach of some other right.

“But you can’t force the change on me!”

Some employers have recognised both the benefits to the business and the obvious health benefits of introducing a smoke-free environment. They have actively encouraged employees in the decision-making process and have provided those who smoke and want to quit with positive health care advice and support, for example, by providing nicotine patches and smoke aversion classes.

Although no smoking policies are a matter of course within many organisations, if you do not have one yet, you may like to consider implementing one. If introduced as a policy, rather than a contractual change, employees may be more ready to accept it. But check whether you may have given employees implicit rights before pressing ahead with this.

“And why won’t you take me on if I smoke?”

An individual’s “smoking status” is becoming a factor in the recruitment process. For example, North Wales Police placed an advert for officers to join their road policing unit stating that the posts were open to “non smokers only”. Certain industries and professions may require higher standards of fitness that most smokers cannot attain. But employers paying private healthcare and life assurance premiums which are inflated by the smokers in their workforces may be pleased to exclude smokers from their workforce. Would that disproportionately disadvantage a certain sector of the population (e.g. a particular race, males or females, older people)? Possibly, we are not aware of the statistics. There could be a claim in there… but indirect discrimination such as this can be justified if employers show good business reasons for the exclusion of smokers. This is definitely a moot point.

So, I am an employer. What can I do?

1. Does your organisation already have a no smoking policy? If not, it may be advisable to enter into consultation with employees in order to implement one. It should clearly specify where and when employees can smoke. If you already have a no smoking policy now may be the time to review it and consider whether it complies with the new legislation if you are in the hospitality trade or have areas open to the public.

2. How many of your employees smoke? Consider the cost effectiveness of offering them support to quit. The resulting drop in absenteeism may more than cover the price for your business.

3. Self help for stressed HR. If you’re feeling a bit uptight about all the changes in the law, you may like to take a break. Has anyone got a light?

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