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Caithness News Bulletins July 2003

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Stubbing Out Smoking In The Workplace
A Brief Guide For Employers by Alan Lewis

A drag
There’s no doubt that smoking habits in the UK workplace have changed quite dramatically over the years. Once it was common place to see an office worker hunched over his desk puffing on a cigarette, or a bus driver taking his fares with one hand and flicking ash out of the window with the other. Not anymore. As well as becoming socially less acceptable in public places such as restaurants and bars, smoking is being slowly stubbed out of the workplace.

The laws on public smoking, while not yet enforcing a complete ban, are getting tighter and it is crucial that employers are aware of their rights and the rights of their staff when it comes to introducing or changing a policy on smoking at work. Getting it wrong could see employers winding up in an Employment Tribunal facing huge legal bills and having to defend a complaint of unfair dismissal at the very least.

The law
Under section 2 of the Health and Safety at Work Act 1974 employers must protect the health of employees and provide a healthy and safe working environment. The Control of Substances Hazardous to Health Regulations 1994 also stipulates that wherever possible employees must not be exposed to hazardous substances.

How hazardous the passive smoking of cigarettes is deemed to be, varies according to whom you believe. A recent study published in the British Medical Journal (BMJ) by American researchers claimed that passive smoking may not cause heart disease and lung cancer. However, the Chartered Institute of Environmental Health (CIEH) and the World Health Organisation (WHO) support the view that passive smoking is very damaging to health. The CIEH even calls for a complete ban on smoking in the workplace.  What is without doubt is that illnesses are often attributed to passive smoking and very often employers are forced to pay compensation to those affected.

It’s clearly in the interests of employers to have some kind of no-smoking policy, however an instant ban with no consultation with staff could have dire consequences. Employment Tribunals may frown upon an instant ban of smoking where no consultation or feedback was collated of those people affected. A substantial notice period of an intention to alter a smoking policy is recommended and could help smooth the process.

Providing a smoking-room is one option. Most modern large office complexes will have some kind of facility like this where smokers can retire to and puff away to their hearts content. But what about non-smokers? It is absolutely critical that policies on breaks and rest periods are firmly stated in staff handbooks and in contracts of employment. Non-smoking colleagues would soon become disgruntled if smokers were given preferential treatment in terms of the length and frequency of breaks during the day.

Banning smoking from the building may be seen by many as a simple, clearly understood solution. The image of your company can be tarnished by a throng of workers hustled outside the entrance to your business smoking if view of the public. This looks scruffy and does not project a good image for your company. But what rights do you have to remove employees from outside the building? Can you forcibly remove employees from outside your company’s front door? Seeking legal advice before you take any steps is crucial.

People caught smoking in areas where they shouldn’t and when they have been made aware of the rules, must be subjected to stringent disciplinary procedures. If an employee continually flouts the company policy by smoking in banned areas and then gets dismissed, if a record of dates when they were warned about their future conduct cannot be produced and the employer has failed to follow a fair disciplinary procedure, then the employer could find itself in deep water with an Employment Tribunal.
In bigger businesses, a watertight human resources or personnel department should manage this effectively – but smaller companies may neglect this kind of detail.

Cold Turkey
Finally, employers must remember to behave reasonably and use empathy when an employee decides its time to kick a life long habit. Very often, the cold turkey experienced by many people who quit makes them irritable. A poor performing colleague who faces disciplinary action could claim that his employers did not treat his nicotine withdrawal sympathetically enough and that his addiction to cigarettes was not classed as a good enough reason for his below-par performance or behaviour.

Having a clear, written policy on smoking at work should be a priority for all businesses. Before introducing policies, companies should perform some kind of consultation with their employees and management to ensure that consideration is given to all views. Businesses must ensure that they comply with employment law regulations whenever they address the tricky issue of smoking in the workplace, getting it right first time can save lots of hassle in the long run.


Alan Lewis is a partner and expert in employment law at Manchester law firm George Davies Solicitors. Here he spells out the do’s and don’ts of implementing a company policy on smoking in the workplace