Smoking in the workplace: the current situation (England and Wales)

Michael Corcoran and Alice Townley Smith of steeles (law) llp begin a series of articles on the legal aspects of smoking in the workplace with a look at the current situation in England and Wales.

While smoking in the workplace is already prohibited in Scotland, there are currently no specific legal requirements for employers in England and Wales to ban or restrict smoking in the workplace. They are, therefore, able to choose whether or not to permit smoking and whether or not to provide a smoking area. However, regulations to be introduced under the Health Act 2006 next year will prohibit smoking in the workplace in England and Wales (to be covered in next week’s article). This will end the obligation on employers to balance the rights of smokers and non-smokers under health and safety and other laws.

Protecting employees

Common law duties

Employers need to be aware that they have a common law duty to take reasonable care of their employees' health and safety and to provide them with a safe place of work. A common law duty is a legal precedent that has emerged in case law and that is binding in much the same way as a statute.

These common law obligations arise as soon as an employer is aware, or could be expected to be aware, of a risk to its employees. Regarding smoking in the workplace, this may require action by the employer to reduce or eliminate the risks posed both to specific individuals who are affected by the smoking and to employees generally. If the employer does not fulfil its duty, it could face civil action, including negligence and breach of contract claims from non-smokers in its employment. In Waltons & Morse v Dorrington [1997] IRLR 488 EAT, for example, a secretary who was a non-smoker succeeded in her claim for constructive dismissal on the basis that her employer did not provide her with a smoke-free space in which to work. It was held that there is an implied term in every contract of employment that the employer will provide and monitor a working environment that is reasonably suitable for the performance of contractual duties.

The position in respect of possible personal injury claims against employers that fail to protect the well-being of their non-smoking staff is less clear. The first passive smoking case was brought in 1993, when an employee received an out-of-court settlement of £15,000 from Stockport Metropolitan Borough Council after years of passive smoking at work led to her developing bronchitis. Furthermore, in 2003, it was reported that an employer paid an out-of-court settlement of £50,000 to an employee who had complained that his asthma was caused by years of working in the smoke-laden atmosphere of a casino. However, on 23 March 2005 the Newcastle Journal reported an unsuccessful passive smoking claim for £396,413 brought by the landlady of a badly ventilated Sunderland pub. These cases demonstrate that, if a risk is identified, or indeed brought to the employer's attention, steps should be taken to address the problem - if not, the employer faces the possibility of a legal claim.

Legislation

Employers could be in breach of the Employment Rights Act 1996 if smoking at work causes employees distress or forces them to leave their jobs.

The Health and Safety at Work etc Act 1974, section 2(2)(e) places a specific duty on employers in respect of employees 'to provide and maintain a safe working environment which is, so far as is reasonably practicable, safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work'.

Employers therefore have an implied duty to control passive smoking at work. This means that if an employee complains about the effects of tobacco smoke, the employer must take action to deal with the risk. Health and safety inspectors can take enforcement action if necessary but, ultimately, it would be for the courts to decide on a case-by-case basis whether or not the risk to health was significant.

The Workplace (Health, Safety and Welfare) Regulations 1992, regulation 6 states that 'effective and suitable provision shall be made to ensure that every enclosed workplace is ventilated by sufficient quantity of fresh or purified air'. This could quite easily apply to cigarette smoke; employers must therefore take care to provide rest areas with suitable arrangements to protect non-smokers from any discomfort that could be caused by tobacco smoke. This could be achieved by providing a separate area for non-smokers or by ensuring that any shared areas are well ventilated, with designated smoking and non-smoking sections.

The Management of Health and Safety at Work Regulations 1999 require employers to assess workplace health risks to their employees. Not only are non-smokers at risk from passive smoking, but all employees are at risk from the potential fire hazards of smoking.

Protecting other persons

The Health and Safety at Work etc Act 1974, section 3 imposes a general duty on employers to protect people who are not employees but who may be affected by employer activities. Therefore, if smoking at work is permitted, employers must take care to consider the possible risks to contractors, members of the public and any other persons in the workplace.

Smoking and employee rights

There is no express right for an employee to smoke at work, unless his of her employment contract states otherwise. In Dryden v Greater Glasgow Health Board [1992] IRLR 469 EAT the Health Board had restricted smoking for a number of years and finally decided to introduce a total ban. Counselling was offered to staff who wished to stop smoking, but Ms Dryden was unable to give up. She resigned, claiming that she had been constructively dismissed because, she alleged, the smoking ban breached her employment contract. The Employment Appeal Tribunal considered whether or not she had an implied contractual right to smoke in the workplace, but concluded that she did not.

Although there is no express right to smoke at work, employers should be aware of the possible consequences of banning smoking completely. Employers that do decide to introduce anti-smoking measures must take care not to disadvantage smokers unjustifiably if they have previously been free to smoke in the workplace - otherwise, they could face a claim for constructive dismissal.

Even though an employee's right to smoke is uncertain at best, it is good practice for employers to introduce a smoking policy that is reasonable and has been carefully considered to avoid any problems. Employers should consider the general dissatisfaction that a total ban may cause and the potential loss of any key employees who would rather leave than be prohibited from smoking at work.

Introducing a smoking policy

When introducing a smoking policy, employers should begin by ensuring that the content of the policy is fair and reasonable and that its implementation is considerate and follows a period of consultation. This can be achieved by: