The introduction of the rules banning smoking in the workplace created a whole new set of questions for employers in relation to how to support their employees who smoke and what form that help should take.
The rules banning smoking in the workplace have come in through health and safety considerations so any steps a company takes in relation to smoking should keep in mind the underlying purpose of the legislation, which is to protect everyone’s health. It is important to remember that this isn’t just about protecting non-smokers but all staff.
There is no obligation on employers under statute to give employees smoking breaks during the day but employees may have a right to breaks within their contract which they can use to smoke. There is a big debate on whether or not employers should allow employees to take smoking breaks and the question of fairness towards both smokers and non-smokers.
Where the contract does not allow the right to breaks then an employer does not have to provide them. An employer is entitled to expect their employees to spend their contractual time working. There is usually a debate between smokers and non-smokers about breaks. Smokers will often argue that they work harder and more efficiently than their non-smoking colleagues because they are effectively getting all of their work done in less time. Non-smokers will argue that it is unfair that they should have to spend more time working than their smoking colleagues for the same amount of pay as well as saying that they carry out more work than their colleagues because they are concentrating more on their own work and covering the work of their smoking colleagues when they are away from their work station.
There is a health and safety argument against allowing smoking breaks which follows the suggestion that a company is under an obligation to protect its employees, even from themselves, and giving smoking breaks, or providing smoking shelters, could be viewed as condoning and supporting smoking. Similarly, in relation to health and safety there is an argument that companies should take steps to ensure that any of their employees who do smoke do so away from the building to avoid the risk to non-smokers. It is a common complaint from non-smokers that they have to run the gauntlet of smoke when they enter or leave the building and have to walk through the clouds of smoke formed by the smokers congregating in entranceways. This raises issues not just about passive smoking but also specific risks to employees with health conditions that affect their breathing and pregnant women.
There is a separate consideration from a public image standpoint. Some companies that have a robust stance against smoking may not wish to work with a company that they feel supports smoking so there is a commercial consideration for firms. There is also the question of appearance and how professional the company looks when people are standing around outside of it smoking.
Companies can designate specific smoking areas where smokers can go and if they choose they can construct smoking shelters for smokers to use. Any smoking shelters cannot be enclosed or substantially enclosed. When determining the level of enclosure it is not just the structure itself that will be taken into account but also any adjacent barriers like hedges or the wall of buildings. When working out where to locate smoking zones or shelters care must be taken to ensure that smoke from those areas won’t enter the building. Remember that smoke rises so consider if it is going to enter the building through open windows above the smoking area.
Companies have to make sure that they enforce any smoking restrictions with all due seriousness in order that employees are aware of the consequences of breaching the rules in addition to protecting the company from litigation. If a company designates smoke exclusion zones and specifies the areas in which employees are allowed to smoke then they must take action if employees are spotted breaking those rules. The company handbook must make it clear what the consequences are for breach of the company’s smoking rules and these must be enforced through the disciplinary procedures if necessary.
For more information on smoking in the workplace please contact Peninsula’s Advice Service on 0844 892 2772.