Chapter 16Employing labourSmoking in the workplace – generally
It is also arguable that at common law an employer is at
fault in requiring employees to work in an atmosphere
containing heavy concentrations of cigarette or cigar
smoke, although it may be possible to call medical evid-
ence to challenge the existence or degree of the risks
involved in ‘passive smoking’. In fact, in Blandv Stock-
port Metropolitan Borough Council(1993), a woman
who had been exposed to passive smoking from 1979 to
1990 when her employer implemented a no-smoking
policy, received £15,000 damages for injury to her health,
including, in particular, chronic bronchitis and sinusitis.
There is, of course, a statutory duty now the new regu-
lations apply. Certainly there is no implied contractual
right to smoke at work and if an employee leaves because
he or she is not allowed to smoke, there is no construct-
ive dismissal (see Drydenv Greater Glasgow Health
Board(1992)); and it may well be that a dismissal for
infringement of a no-smoking rule properly commun-
icated and agreed with staff would not be unfair.
More recently the Employment Appeal Tribunal has
decided that the secretary in a solicitor’s office who left
because of discomfort caused at the workplace by col-
leagues who smoked was constructively dismissed (see
Waltons and Morsev Dorrington(1997)). In previous
passive smoking cases the complainant has suffered
physical injury. However, in this case, the EAT, after
ruling that it is an implied term in all employment con-
tracts that the employer will provide and continue to
monitor, as far as is reasonably practicable, a working
environment which is reasonably suitable for employees
to carry out their duties, then went on to comment that
the right of an employee not to be required to sit in a
smoky atmosphere affects the welfare of employees at work,
even though employees who complain cannot necessar-
ily prove that there has been any health and safety risk to
them. It would appear that discomfort is enough.
Smoking in the workplace – a code of practice
Following consultation, the Health and Safety Com-
mission has issued a code of practice on passive smoking
under the Health and Safety at Work etc. Act 1974. The
code will have special force in that failure to follow it,
though not in itself an offence, could lead to a successful
claim for damages under health and safety provisions
by an employee who having suffered injury put it in
evidence. The code is likely to lead to a total ban in
smaller companies that find that they cannot afford the
alternative measures in the code, such as segregated
smoking rooms.Work breaks for smokers
It can be a source of resentment between employees where
smokers are given breaks for smoking in segregated
areas if similar breaks are not given to non-smoking
employees. Employers should have an up-to-date policy
on smoking and refreshment breaks that is properly
communicated to all employees and ensures that all
employees are aware of permitted breaks and reasonable
amount of time away from their workstation to which
they are entitled. Employers do not have to agree to
additional breaks for smokers and if this gives rise to a
grievance it would not create a case for an employment
tribunal. The issue of discrimination would not arise in
the UK because nicotine addiction is specifically excluded
from the Disability Discrimination Act 1995.Smoking in the workplace – legislative duties
Relevant legislation includes the following:■The Health and Safety at Work etc. Act 1974. Exposure
to environmental tobacco smoke (ETS) is a health
hazard and, by exposing non-smokers to ETS, the
employer could be in breach of the Act.
■Management of Health and Safety at Work Regulations
1999 (as amended). These impose specific requirements
to make risk assessments in regard to health, safety
and welfare at work of all employees. Given the evid-
ence of the risks involved in exposure to ETS, this
should be included as a risk and appropriate measures
taken to deal with the risk.
■Workplace (Health, Safety and Welfare) Regulations 1992.
Under these regulations where rest areas are provided
arrangements must be made to ensure that non-
smokers can use them without the discomfort of ETS.
■Employment Rights Act 1996. This provides for a gen-
eral duty on the employer to protect employees from
risks. Non-smokers who are subjected to ETS where
the employer will not do anything about it could resign
and claim constructive dismissal.509Comment. Despite the fact that the Post Office had a
safe system of maintenance and repair, the claimant
succeeded. A reasonable system for maintenance may
no longer be an adequate defence. Employers faced
with health and safety incidents should take note of the
implications of this ruling.