The smoking ban has now been in place since July. Some employers have taken the opportunity to ban smoking on all company premises (even outside at break times) and some naughty smokers are not playing ball! So what action can you take against them?

by Mark Ellis

The general rule of law that is that if you allow an employee to conduct him/herself in a certain manner for a long enough period of time, then that conduct becomes an implied term of the contract.

It’s not therefore surprising that that some smokers who have enjoyed a cigarette break for many years think that they have the contractual right to a fag break.

Another problem for you (the employer) is that the penalties for non compliance with the new law can be high. You can be prosecuted and face hefty fines. You also run the risk that other employees could complain that passive smoking has had a detrimental impact on their health.

However, if you sack a smoker (who says he/she has always been allowed to smoke at break times for years) it’s a safe bet that he/she will have a pop at you for unfair dismissal!

So how do you strike the right balance?

The majority of case law at the present time has been heard in the Scottish tribunals where the smoking ban was introduced in March 2006. The claims are just starting to come through the system and the general consensus seems to be that if the company policy is clear and is enforced properly and fairly, dismissing an employee who flouts that policy by continuing to smoke, would be deemed to be fair.

In a case called Smith v Michelin Tyre, the company utilised the ban to extend its non smoking policy to all areas of the premises, including the areas outside that had previously been used as designated smoking areas. The policy was drafted and sent to all employees, and the policy made it clear that smoking would be considered a gross misconduct offence. So when Mr Smith was dismissed after being caught smoking, the Tribunal found that the dismissal was fair and therefore his claim failed.

The tribunal highlighted the following key issues:

1. The employees’ personal circumstances had to be weighed against the importance of the smoking policy in preserving business, protecting the company and protecting other staff members.

2. The policy should be clear, communicated to the staff and enforced consistently.

It can be difficult for employers to balance the interests of all employees: for example, it has been a common cause for complaint that smokers are taking more breaks than non smokers and this can cause unrest in the workforce and this can lead to grievances of less favourable treatment.

The key point to note is that as long as the policy is clear, communicated to employees and enforced consistently, any subsequent dismissals are likely to be deemed to be fair. If you don’t have a good policy — then you know who to ask!

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