Smoking in enclosed or substantially enclosed public places and workplaces in England has been prohibited since July 2007. Although you might think this would ‘stub out’ many of the issues relating to smoking employees, employers still frequently ask for our advice about problems relating to smoking, so we thought it would be helpful to put together some guidance on the main areas.
- A no-smoking policy
It is advisable (but not a legal requirement) to put in place a no-smoking policy. This can cover points such as smoking breaks (see below) and a prohibition on smoking on the premises or in company vehicles. This will ensure staff and others are aware of what the expectations are. We can help you put together a suitable policy, or review your existing document to ensure it covers the necessary points.
- Right to smoke?
There is no right for an employee to be able to smoke at work, but if you are making a significant change to smoking arrangements then it is best to discuss this with employees as part of good communication. Should an employer seek to implement a total ban of smoking on its premises then this is likely to be viewed as a ‘works rule’ and part of an employer’s duty to ensure the health and welfare of its employees. However, many employers do allow smoking in designated areas and often provide areas such ‘smoking shelters’. Where shelters are provided, they must comply with relevant legislation i.e. the shelter must be less than 50% enclosed.
- Smoking breaks
The issue that regularly comes up in relation to smoking in the workplace is smoking breaks, particularly where colleagues perceive the number or length of breaks to be excessive.
Clearly, an employee can choose to smoke during their designated breaks and many employers adopt a flexible approach to allowing their employees to take time off for cigarette breaks.
Despite this, excessive smoking breaks can cause other employees, particularly non-smokers, to feel disgruntled. An employer can deal with excessive smoking breaks under their disciplinary procedures. Employers must be mindful that there needs to be tangible evidence of the excessive smoking breaks before any disciplinary action is taken – often this can be difficult as smoking breaks are rarely recorded. If the excessive breaks continue despite a series of warnings, then eventually the employer would have grounds to dismiss.
There may be some instances where breach of the smoking policy or rules could constitute gross misconduct, such as smoking without regard to safety rules e.g. smoking next to flammable liquids when it is clearly designated as a no smoking area. Specific advice should be sought in such circumstances as clearly not all breaches of a smoking policy will constitute gross misconduct.
- Smoking in workplace vehicles
The legislation says that if a vehicle is used by more than one person in the course of paid or voluntary work, then smoking will be prohibited within the vehicle, regardless of whether an employee is on his or her own in the vehicle. Smoke-free vehicles must also display a no-smoking sign. Vehicles used primarily for private purposes are excluded from this ban.
- Assistance to quit
There are various organisations and programmes on offer to help individuals to quit smoking. Many employers do offer help to employees looking to stop. This is entirely voluntary for both employer and employee but can certainly reap mutual benefits in terms of good workplace relations and the health and wellbeing of individuals at work.
For advice on this or any other aspect of employment law, please contact any member of the Pure Employment Law team on 01243 836840 or [email protected].