Smoking policies at work
Our Guidance Note focuses on the employment law considerations relevant to the introduction of policies on smoking at work.
Passive smoking increases the risk of lung cancer and other respiratory diseases, according to the most recent major study about the effects of environmental tobacco smoke. This study1, undertaken by the United States Government's Environmental Protection Agency (the EPA), was published in December 1992 and pulled together much of the available scientific evidence on the subject. The EPA classified environmental tobacco smoke as a "known human carcinogen", which puts it alongside substances such as benzene, radon gas and asbestos. It concluded that widespread exposure to environmental tobacco smoke presents a serious and substantial threat to public health.
In the UK, in 1988, the Fourth Report of the Independent Scientific Committee on Smoking and Health2, a government advisory body chaired by Sir Peter Froggatt, indicated that passive smoking - the involuntary inhalation of other peoples' tobacco smoke - was responsible for causing several hundred lung cancer deaths a year. Research has also suggested a possible link between passive smoking and heart disease, and an association between the exposure of pregnant women to environmental tobacco smoke and low birthweight babies.
The tobacco industry has, however, sought to cast doubt on the importance of these findings, asserting that any risk to non-smokers of lung cancer from passive smoking is very slight. The issue is currently being examined in the UK by the Department of Health's recently formed Scientific Committee on Tobacco and Health, which is reviewing the scientific literature on environmental tobacco smoke and lung cancer.
The workplace is one of the few environments where non-smokers may have to spend long periods alongside smokers. In the light of what is now known about the effects of exposure to environmental tobacco smoke, employees and employers alike are concerned about smoking in the workplace. In its publication Passive smoking at work3 the Health and Safety Executive (the HSE) stresses that surveys show most workers would prefer not to breathe air polluted by tobacco smoke when at work. It recommends that non-smoking should be regarded as the norm in enclosed workplaces, with special provision being made for smoking employees rather than for non-smokers.
Very many employers have now taken, or are taking, steps to tackle the issue of tobacco smoke in the workplace (see Workplace smoking policies 1: content and motives, February 1996). Derby City Council, for example, bans all staff recruited after 5 November 1995 from smoking at work. The contracts of employment of such "new" employees specify that any breach of this smoking ban will result in disciplinary action. Existing staff are only permitted to smoke in designated areas. Increasingly, employers in the private sector are also introducing smoking policies.
Out-of-court settlements
Significant impetus to action has been added by Stockport Metropolitan Borough Council's well-publicised decisions to pay substantial compensation to two of its employees, Veronica Bland and Beryl Roe, for damage to their health allegedly caused by passive smoking at work. The more recent case concerned Ms Roe, who retired from her job as cleaning services manager on grounds of ill health. Since 1983 she suffered eye, nose and throat symptoms and bronchial hypersensitivity. She claimed that these problems were caused by exposure to high levels of tobacco smoke in her open-plan office. The windows were sealed, and the ventilation system was not operating. Earlier this year, Ms Roe received £25,000 from her former employer in an out-of-court settlement. In 1993 Ms Bland, who worked in the same department as Ms Roe, received £15,000, also out of court. The solicitor representing both women said that the council's failure to introduce a no-smoking policy was significant, as was its failure to ensure proper ventilation despite numerous complaints from employees during the 1980s. Refurbishments costing over £500,000, including the installation of new air filters, have since been made to the office block concerned, and Stockport now operates an anti-smoking policy.
Potential for common law liability
The issue of common law liability for damage to health caused by passive smoking in the workplace has not yet been tested in the courts in the UK, and so no legal precedent has been established. However, in 1992 the anti-smoking pressure group, Action on Smoking and Health (ASH), obtained a legal opinion from Patrick Elias QC4 which suggested that enough was known by that time about the dangers of passive smoking to mean that an employer's common law duty of care to protect its employees' health at work would be breached by its allowing non-smoking employees to be exposed to tobacco smoke. On this basis, any employee who could establish the causal connection between injury and exposure to environmental tobacco smoke in the workplace might successfully sue his or her employer for damages for negligence.
Although not an employment law case, in 1990 the Social Security Commissioner ruled (in Clay v Adjudication Officer) that an asthma sufferer incurred injury to her lungs on several occasions as a result of exposure to tobacco smoke at her place of work and that, for the purposes of the Social Security Act 1975, these injuries should be classified as industrial accidents entitling her to certain social security benefits. This case turned on its own special facts, such as Ms Clay's extreme sensitivity to chemicals in tobacco smoke, and the Commissioner stressed that his decision was not a precedent for other cases where it might be alleged that the gradual day-to-day process of passive smoking had a deleterious effect on an employee's health. Nevertheless, the case prompted a lot of interest from employers and provides further impetus for the introduction of smoking policies in the workplace.
In cases of other occupational hazards, the courts have indicated that an employer is potentially liable from the time when it ought to have known about the risk to employees' health. In Thompson Gray and Nicholson v Smiths Shiprepairers (North Shields) Ltd, which was concerned with occupational deafness, the Court of Appeal held that there was knowledge by 1963 of the harmful effects of excessive noise over a long period of exposure. The Court noted that a Ministry of Labour pamphlet entitled Noise and the worker was published in 1963, and said that from that time on there was no excuse for ignorance by employers. By that time also, effective measures existed for guarding against noise-induced hearing loss, in the form of special ear protectors.
By analogy, it seems likely that a court would conclude that employers should have been aware of the dangers of environmental tobacco smoke in the workplace for some years now, and that liability for any failure to act may be backdated accordingly.
Health and safety legislation
In certain industries, such as the food industry and industries involving the use of flammable or explosive substances, statutory Regulations prohibit smoking by employees. In general, however, there is no direct statutory requirement for an employer either to restrict workplace smoking or to protect employees from the effects of tobacco smoke. The exception to this rule arises where employees are provided with rest areas at their place of work. Under the Workplace (Health, Safety and Welfare) Regulations 19925 an employer must introduce appropriate measures for the protection of non-smokers against discomfort caused by tobacco smoke. In practice, this means that there must be separate rest areas for smokers and non-smokers, or a smoking ban in all rest areas. The Regulations now apply - since 1 January 1996 - to all workplaces. (When they originally came into effect, on 1 January 1993, they applied only to "new" workplaces and workplaces converted, altered or extended after that date.)
Under s.2(1) of the Health and Safety at Work Act 1974 (the HSWA), an employer has a general duty "to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees". Section 2(2)(e) provides that the employer's duty extends to providing and maintaining for employees a 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". Failure to discharge duties under the Act is a criminal offence. Clearly, tobacco smoke in the workplace is relevant to employees' health and welfare, and employers should have been aware of the risk to health from passive smoking for some time. It is strongly arguable, therefore, that the HSWA places employers under an obligation to take action to prevent passive smoking in the workplace.
Enforcement of the Act is the responsibility of the HSE and local authorities. Inspectors appointed by enforcing authorities have wide powers to serve improvement or prohibition notices, or to prosecute. In practice, however, prosecutions are only likely to arise in very serious cases - for example, fatal accidents. Similarly, prohibition notices are only issued if there is a risk of serious injury at work, from defective machinery for example. Improvement notices, which are subject to appeal to an industrial tribunal, may be issued if an enforcing authority believes that the HSWA is being breached. To date, however, no legal proceedings have, to our knowledge, been brought against an employer under the Act in connection with smoking in the workplace.
The pressure on employers to address the problem of workplace smoking therefore comes from several directions. Publicity about the risks to health from passive smoking and the possibility of legal liability for employees' ill health caused by exposure to environmental tobacco smoke at work is important. Weight should also be given to the recommendations of the HSE that employers ought to adopt formal smoking policies for the workplace.
TYPES OF SMOKING POLICY
Notwithstanding the incentives to action, employers introducing new smoking policies need to be aware of the employment law pitfalls they may encounter if this is done without adequate consultation, or consideration as to the best methods of implementation and enforcement. In particular, consideration must be given to whether the introduction of a policy represents a change in terms and conditions of employment, and to whether the proposed methods of enforcing the policy carry with them any danger that dismissals resulting from that policy will be found to be unfair.
Where an employer introduces an informal smoking policy, which is purely voluntary and which relies on the goodwill and cooperation of employees, and where no enforcement mechanism is envisaged, there is no question of the policy amounting to a change in employees' terms and conditions of employment. Furthermore, employees who choose not to cooperate with such a policy do not risk disciplinary action and so the issue of unfair dismissal will not arise. Most workplace smoking policies, however, are more formal and involve some means of enforcement.
Ban at recruitment
One approach is to restrict recruitment to non-smokers, or to ban new employees from smoking at work by including a term to that effect in their contracts of employment. Restricting smoking by new employees in this way carries with it no danger of breaching the contracts of employment of existing employees. However, enforcement against recently appointed employees but not against those of longer standing may create resentment and difficulties in the workplace. It is sensible for an employer to decide in advance how such a situation should be dealt with, and those employees affected by the policy should be clearly informed of the consequences for them of smoking at work.
Ban in specified areas
Partial smoking bans are common in certain industries, for example in the food industry for reasons of hygiene, or in areas where employees are in contact with flammable materials. In several cases, industrial tribunals have held that the dismissal of an employee for flouting such a ban was fair, provided proper disciplinary procedures were followed (see below ). Each case will, of course, depend on its own facts.
Where smoking is banned in specified areas in the workplace, the employer will have to deal with the potential problem of smokers who work in the no-smoking area. Heavy smokers may be tempted to make regular trips to the areas where smoking is permitted, and, unless there are restrictions placed upon the frequency and timing of such trips, the quality and quantity of their work may be adversely affected. Thus, even a partial ban is likely to require a change in behaviour, and in particular a reduction in tobacco consumption by some employees.
Complete ban
Where an employer introduces a complete ban on smoking, it may encounter problems with employees previously allowed to smoke in the workplace, or in some area of it. Complete bans have, however, been introduced successfully by many employers. Generally speaking, a crucial element is the provision of adequate consultation with employees, and adequate warning and time for smokers to adapt to the new rules. In addition, help, guidance, and possibly counselling and other incentives for employees who want to give up smoking, or cut down on their tobacco consumption, will smooth the path. The implications, from an employment law perspective, of introducing new smoking policies are considered in detail below.
Note: For a comprehensive review of the law relating to changing terms and conditions of employment, see our recent series of Guidance Notes in Changing terms and conditions 1: ways of implementing changes, Changing terms and conditions 2: consequences of unilateral changes and Changing terms and conditions 3: specific changes.
TERMS OF EMPLOYMENT
Whatever formal policy is introduced, whether it be a partial or complete ban on smoking, that policy will represent a change in the rules applicable in the workplace. Whether such a change necessarily involves a change in terms and conditions of employment is an important issue which was first addressed by industrial tribunals in two cases in the mid-1980s. Conflicting decisions resulted. In the first case, Watson v Cooke, Webb & Holton (Insurance Brokers) Ltd, the tribunal concluded that when Ms Watson's employer took away her right to smoke at work, it was to be treated as having changed her terms of employment. Since she had not consented to this change, the employer fundamentally breached her contract of employment and Ms Watson's subsequent resignation thus constituted a constructive dismissal, which the tribunal found to be unfair. But in Rogers v Wicks & Wilson Ltd. the industrial tribunal distinguished contractual terms from mere "work rules", saying that restrictions on smoking would in most cases fall into the latter category. A contractual term giving a right to smoke could not be implied merely from the fact that Mr Rogers had been allowed to smoke in the past, since smoking or not smoking had nothing to do with the performance of his contract of employment. The smoking restrictions were therefore merely disciplinary rules, breach of which would lead to disciplinary action rather than a remedy for breach of contract.
In 1992, in Dryden v Greater Glasgow Health Board, the EAT considered for the first time the issue of whether an employee has an implied contractual right to smoke at work. Ms Dryden was employed as a nursing auxiliary. Her employer had operated a limited smoking policy for some years under which smoking was permitted in certain areas only. In 1990, a total smoking ban was proposed, to take effect after consultation with employees and relevant trade unions. The new policy was implemented in 1991, with information and counselling offered to employees who might find the complete smoking ban difficult to accept. Ms Dryden was a long-term smoker who had made several unsuccessful attempts to give up in the past. After complying with the ban for a few days she decided that she could not get through an eight-hour shift without smoking, and resigned. Subsequently, Ms Dryden complained of unfair constructive dismissal to an industrial tribunal.
An employee is treated as having been constructively dismissed by his or her employer if he or she terminates the contract of employment, with or without notice, in circumstances which would entitle him or her to resign without notice "by reason of the employer's conduct" - s.55(2)(c) of the Employment Protection (Consolidation) Act 1978 (the EP(C)A). According to the Court of Appeal in Western Excavating (ECC) Ltd v Sharp, this means that the employer must be guilty of conduct which amounts to a significant breach going to the root of the contract or which shows an intention not to be bound by one or more of its essential terms.
The tribunal dismissed Ms Dryden's complaint, holding that the introduction of the new policy had not breached any express or implied term of her contract of employment. In particular, the tribunal held that the common law implied term - identified by the EAT in United Bank Ltd v Akhtar - that an employer should not act in a way which prevents an employee from performing his or her part of the contract, did not apply in Ms Dryden's case. The facility to smoke, said the tribunal, was not necessary for the performance of her obligations under her contract of employment. Similarly, there was no breach of the generally implied term that an employer should not, without reasonable and proper cause, act in a manner which is calculated to destroy mutual trust and confidence between the parties. The new rules on smoking had been introduced in a sympathetic and responsible way after lengthy consultation. Ms Dryden, therefore, had not been constructively dismissed. She appealed to the EAT.
No implied right to smoke
Referring to the "contractual" test for constructive dismissal laid down in Western Excavating, the EAT confirmed that there was no express term in Ms Dryden's contract governing smoking. Nor was there any relevant negotiated agreement between the employer and the trade unions covering working rules on the issue. Further, on the facts of the case, there was no basis on which it was possible to imply a specific term in the contract which conferred any "right to smoke". Indeed, Ms Dryden had accepted at the industrial tribunal hearing that the original limited smoking ban was essentially a matter for the employer's works rules.
Ms Dryden's main submission to the EAT was that the industrial tribunal had taken the wrong approach to the question of whether or not the employer had breached an implied obligation not to frustrate its employee's attempt to perform her part of the employment contract. She said that the tribunal should have looked at the employer's conduct, and to the facts and circumstances of the individual employee, and then applied a test subjectively in relation to the particular employee affected. But the EAT accepted that an employer was entitled to introduce rules governing the conduct of employees at the workplace, as it was entitled to give lawful orders within the scope of the contract. Once it was established that there was no specific express or implied term entitling the employee to facilities for smoking, a rule banning smoking was, in itself, lawful. Ms Dryden's submission really meant that if an employer introduced a rule which applied to all employees generally, but was a rule with which one employee was unable to comply, the employer must be held to repudiate the contract in relation to that employee.
Neither the implied term in Akhtar, which the EAT in Ms Dryden's case characterised as an application of the principle that an employer should not exercise its powers or discretion in such a way as to make it impossible for the employee to perform the contract, nor the broader implied term of trust and confidence, went so far as to justify such a restriction on the employer's ability to make and alter working rules.
The EAT said that it might be possible to envisage an implied term to the effect that the employer would not change working rules in a way which adversely affected an employee or group of employees without reasonable notice or consultation or, perhaps, without some substantial reason. It was much more difficult to envisage an implied term which restricted the employer's rights by reference to the views, or even the requirements, of each particular employee. Thus, concluded the EAT, "where a rule is introduced for a legitimate purpose, the fact that it bears hardly on a particular employee does not... in itself justify an inference that the employer has acted in such a way as to repudiate the contract with that employee."
The EAT could find no reason to interfere with the reasoning of the industrial tribunal in Ms Dryden's case, and it dismissed her appeal.
UNFAIR DISMISSAL
Although it now seems likely that an employer may introduce a workplace smoking policy without acting in breach of contract, the manner in which a new policy is implemented and enforced may give rise to complaints of unfair dismissal if the process is not carefully handled by the employer. A dismissal will be unfair if an industrial tribunal considers that the employer acted unreasonably in all the circumstances in treating the reason for the dismissal as sufficient (s.57(3) of the EP(C)A). There is no doubt that it is reasonable for an employer, knowing the risks to health from passive smoking, to seek to introduce a smoking policy, and so an employer is only likely to be found to have acted unreasonably if a ban is introduced or enforced in an unreasonable way.
Safety and food hygiene
As noted above, in certain industries, smoking is banned for reasons of safety or hygiene. In such circumstances, a breach of the smoking ban will constitute a disciplinary offence, which is likely to result in dismissal. Industrial tribunals have considered bans for these reasons on a number of occasions, and in most cases have concluded that a breach may reasonably justify dismissal, provided the consequences of such a breach were made clear and proper disciplinary procedures were followed.
In Martin v Selective Print Ltd, for example, the employer, a greetings card manufacturer, had a fire at its factory after which the insurers of the property insisted that strict precautions were taken against the risk of another fire. As a result, the employer banned smoking in most areas. It was made clear to employees that anyone found smoking in a no-smoking area would be liable to face serious disciplinary action and possibly dismissal. Mr Martin was dismissed for smoking in breach of the rules. The tribunal found that the smoking policy had been sufficiently drawn to the attention of employees, and took the view that because of the employers' safety regulations it was clear that dismissal of Mr Martin was the only penalty open to it. The tribunal held that his dismissal was fair.
In O'Connell v Marks & Spencer plc, however, the industrial tribunal reached a different conclusion, which highlights the fact that each case turns on its own particular circumstances. In this case, the employer, with a view to minimising the risk of fire, had a strict no-smoking policy applying to all its premises with the exception of designated areas, where smoking was permitted at designated times. Marks & Spencer's employees have contracts of employment which provide that any breach of the fire regulations or smoking rules will result in instant dismissal. Mr O'Connell, one of the security staff at the Colchester store, was seen smoking outside the entrance to the store while working a night shift, and was dismissed. He argued that he had been smoking just at the perimeter of his employer's premises, by the public footpath. Furthermore, he said, it was an isolated incident arising out of the fact that, to accommodate the delivery and installation of new escalators at the store that evening, he had worked extra hours with only a short break. He would not normally smoke at all during his working day. At the time Mr O'Connell was found smoking he had several more hours on duty ahead of him.
In considering his unfair dismissal complaint, the tribunal decided that Mr O'Connell's action had not been a fire risk. It concluded that the employer had automatically implemented its policy without taking account of the particular facts of the case, and held that in all the circumstances Marks & Spencer had acted unreasonably in deciding to dismiss.
In the food industry, hygiene regulations prohibit the use of tobacco by any person handling food. But more widely-drawn smoking policies are very common, and clearly appropriate, in the industry. In O'Hara v Avana Bakeries, the employer manufactured fresh bakery products. It had a no-smoking rule in respect of the whole factory except the canteen. This rule was to ensure that foreign bodies such as cigarette ends, which could be transferred on the soles of employees' shoes from one area to another, would not find their way into the factory's products. The rule had not always been strictly observed, but the employer tightened up its smoking policy and put up notices to inform employees that anyone caught smoking would be dismissed. Mr O'Hara was dismissed for smoking in the lavatory area on a day when he was assisting as a hygiene worker in the mixing department. He complained that his dismissal was unfair. The industrial tribunal accepted that there had been some inconsistency in the employer's handling of smoking incidents in the past, but it emphasised the importance of the no-smoking policy on the ground of food safety and hygiene. The tribunal found that by the time of Mr O'Hara's dismissal the stricter enforcement of the policy had been made clear, and in all the circumstances the dismissal was fair.
Consultation
Where a workplace smoking policy is introduced for reasons not directly connected with hygiene or the risk of fire or explosion, but because of concern about the risk to health from passive smoking, employers may encounter resistance from employees who have previously been free to smoke at work. An employer which ignores or makes no effort to determine the wishes of those who smoke, even if they are in a minority, may well be acting unreasonably.
Recognising this, the HSE, in its publication Passive smoking at work, recommends that "employers should... consult their employees and their representatives on the appropriate smoking policy to suit the particular workplace. This will maximise the chances of acceptance by all the employees. It is important to take time to develop the policy and then give notice of its introduction. A minimum period of three months' notice is recommended. If necessary, a transitional period or a step-by-step approach should be introduced. And staff should be made aware of the details of the policy and what will happen to those who do not abide by it."
The case of Watson v Cooke, Webb & Holton (Insurance Brokers) Ltd provides an illustration of an employer's unreasonable approach to the introduction of a workplace smoking policy. Ms Watson, who had smoked at work, returned to her employer's new premises after sick leave. The employer had decided that smoking would be banned in the new building. Ms Watson felt unable to change her smoking habits, but the employer refused to make any allowances for her. The industrial tribunal found that she had been unfairly dismissed partly because she had not been consulted in connection with the smoking ban, and also because her employer had not explored any alternatives to help her. The tribunal observed that she had in effect been given an ultimatum, and that "it was predictable that she would not and perhaps could not desist from a habit overnight. Knowing the difficulties, it would... have been more appropriate for the matter to have been discussed in a much more sensitive and sympathetic way over a period of time in an effort to achieve what clearly to the employer was a very important object. There might have been practical alternatives whereby Ms Watson could have smoked outside the office where she worked."
In Rogers v Wicks & Wilson Ltd, the employer decided to impose a complete ban on smoking at its premises. Employees were given four months' notice of the new policy. The employer's decision was prompted by publicity highlighting the health risks from environmental tobacco smoke. The views of the workforce were not formally sought, but the employer took account of the fact that employees had already in some areas introduced their own smoking bans, and that no formal objections were raised at a meeting where all employees were told of the decision to introduce a total ban. The tribunal found that in all the circumstances the employer had acted reasonably. In reaching this conclusion it was strongly influenced by the fact that there was no serious general opposition to the ban. The tribunal seemed to take the view that a reasonable employer would have consulted more fully and perhaps been more flexible if there had been some concerted complaint by a number of employees.
Consultation may take various forms. Some employers will consult with employees quite informally, but many adopt a more formal approach. For example, questionnaires about workplace smoking are frequently used at an early stage to gauge employees' attitudes to the issue. These may then be followed up by discussions, where smokers and non-smokers have the opportunity to contribute, and proposals, out of which a draft policy may emerge. After further comments have been invited, the final policy will be drawn up. As the HSE emphasises, this should be introduced at some specified date in the future, or may perhaps be phased in over a period of time.
Where a trade union is recognised by an employer seeking to introduce a workplace smoking policy, the union, which is likely to have a specialist health and safety department, should play an active role in the formulation and implementation of the policy.
Communication and consistency
Both the smoking policy itself and the consequences of a breach of that policy should be clearly communicated to employees. If an employer intends that breach of a smoking policy may be considered misconduct justifying immediate dismissal, this should be made very clear to employees in any disciplinary rules applicable to their employment. If the employer fails to do this, but summarily dismisses an employee for smoking in breach of the rules, the dismissal may be unfair, as illustrated by Trusthouse Forte (Catering) Ltd v Adonis. In this case, Mr Adonis was summarily dismissed from his job as a head waiter after he was discovered smoking in a prohibited area. His employer had previously posted a notice at the workplace stating that any employee caught smoking in breach of the rules would be dismissed for gross misconduct. Ten days after the notice was put up, Mr Adonis was reissued with written particulars of his employment. In the section headed "Disciplinary rules", smoking in a non-designated area was included in a list of examples of misconduct in respect of which dismissal might be the result if a warning did not effect improvement. There followed a list of offences constituting "gross misconduct", the penalty for which was summary dismissal. Smoking in breach of the rules was not included in this list
The EAT upheld the industrial tribunal's decision that Mr Adonis's written terms of employment encapsulated the true position between the parties. Under these terms, smoking in a non-designated area was not an act of gross misconduct justifying summary dismissal without a warning. Mr Adonis's dismissal was unfair in all the circumstances.
In Cruz-Suarez v MBM Technology Ltd, the employer had introduced a no-smoking policy in its premises in March 1994, and the industrial tribunal was satisfied that the introduction of the policy and the consequences of a breach of that policy were adequately communicated to employees. Mr Cruz-Suarez was summarily dismissed for "smoking in an unauthorised area during working hours". He had left his workplace without the approval of his supervisor and gone to a roof space which was used for the storage of archive material and to which few people had access. The stairs to the roof space were wooden, the ceiling low and the contents were substantially paper. He was discovered by a manager, and admitted he had been smoking.
The industrial tribunal observed that smoking in an unauthorised area was merely treated as "misconduct" under the company's disciplinary procedure, and that of itself would not have justified the action taken, despite the additional factor of Mr Cruz-Suarez being away from his place of work without permission. But the tribunal was satisfied that any reasonable person would have taken the view that the roof space was an extremely hazardous place to smoke, and it fell within the band of reasonable responses for the employer to treat it as being so dangerous as to justify instant dismissal.
An employer may be tempted to be lenient towards employees in the early stages of a smoking ban, but if it adopts this approach the employer should make it quite clear if and when that leniency is to end. If this is not done and an employee is dismissed when previously a lesser penalty would have been imposed, the inconsistent treatment may make the dismissal unfair.
In general, it may well be sufficient to announce clearly to employees that a stricter line will be taken in the future. In Pickering v Leyland & Birmingham Rubber Co Ltd, nobody had ever been dismissed for smoking in an area where smoking was prohibited. However, the employer subsequently posted a notice which clearly stated that anyone caught smoking would be liable to be dismissed summarily. Mr Pickering, who admitted he was aware that his employer took a serious view of any smoking in prohibited areas, was dismissed for breaking the rule after the notice was put up. The industrial tribunal found the dismissal fair because the employer had made it sufficiently clear that its previous leniency towards those caught smoking would not continue.
An employer may find it more difficult to defend unfair dismissal complaints if, even after saying the rules would be strictly enforced, it still did not always dismiss employees for smoking. In O'Hara v Avana Bakeries, for example, the employer's smoking ban was "honoured as much in the breach as in the observance". The employer decided it would take a stricter view in the future and put up notices to the effect that anyone caught smoking would be instantly dismissed. Even after that, employees caught smoking were only issued with a warning. When an employee was finally dismissed for smoking, the employer was threatened with industrial action and eventually agreed to reduce the penalty to one week's suspension without pay. It was agreed with the trade union that thereafter smoking would be met with instant dismissal. Some time later, Mr O'Hara was dismissed for smoking in breach of the rules. He complained that his dismissal was unfair, largely on the basis that his employer had not acted consistently.
The tribunal held that by the time of Mr O'Hara's dismissal it had been made sufficiently clear to the workforce that anyone caught smoking would be dismissed. Mr O'Hara's dismissal, therefore, was not unfair. But the tribunal criticised the employer for the way it had communicated the change in disciplinary policy. "We trust that steps will be taken in future to ensure that disciplinary policies are clearly and unequivocally brought to the attention of the shopfloor, rather than relying upon the trade union passing the message to their members."
Fair disciplinary procedures
It is important that fair disciplinary procedures are followed by an employer when dealing with a breach of its smoking policy. For example, the employer must undertake a reasonable investigation of the alleged incident, and the employee should be given an opportunity to put his or her case to the employer. In Upton and another v Scotia Barry Foods Ltd, the employer - a food manufacturer which introduced a stricter smoking policy under pressure from customers - dismissed two employees who were caught smoking in breach of the new rules. The dismissals were found by the industrial tribunal to be unfair for a number of reasons, but principally because the two employees were given no opportunity to defend themselves or to be represented in the disciplinary process. Had they had the opportunity to put their case, they would have pointed out that previously three other employees were not dismissed even though they too had been caught smoking. In respect of the three earlier incidents, the tribunal found that it had been unreasonable of the employer not to have informed the workforce that there had been extenuating circumstances in these cases and that this was why the employees concerned had not been dismissed.
In Wright v Ladbroke Racing Ltd, an industrial tribunal held that it was reasonable for the employer to introduce, on three months' notice, a smoking ban in the counter area of its betting-shops, but it had acted too hastily in initiating disciplinary proceedings in respect of Ms Wright's breach of the ban immediately the policy came into effect. Ms Wright had made it clear from the time she heard of the ban that she would not comply with it, notwithstanding her employer's repeated attempts to persuade her to change her mind. The tribunal took the view that, as she was a long-serving employee with an excellent work record, the employer should have adopted a rather more subtle approach to her case and tried harder to find some solution. It suggested, however, that Ms Wright was unlikely to change her attitude, and that, in those circumstances, dismissal after a further month would have been fair. The tribunal ruled that compensation should be assessed accordingly.
Introducing workplace smoking policies: main points to note
CASE LIST
Clay v Adjudication Officer 16.7.90 Case No.2/11/1935 (Commissioner's file: C1/364/1989)
Cruz-Suarez v MBM Technology Ltd 4.12.95 Case No.34389/95
Dryden v Greater Glasgow Health Board [1992] IRLR 469
Martin v Selective Print Ltd 6.3.87 Case No.35262/86
O'Connell v Marks & Spencer plc 4.1.95 Case No.66706/93
O'Hara v Avana Bakeries 14/5/86 Case No.711/86
Pickering v Leyland & Birmingham Rubber Co Ltd 23.5.88 Case No.7101/88
Rogers v Wicks & Wilson Ltd 14.12.87 Case No.22898/87
Thompson, Gray and Nicholson v Smiths Shiprepairers (North Shields) Ltd [1984] IRLR 93
Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382
United Bank Ltd v Akhtar [1989] IRLR 507
Upton and another v Scotia Barry Foods Ltd 28.6.88 Case Nos.19134/87 and 19189/87
Watson v Cooke, Webb & Holton (Insurance Brokers) Ltd 5.9.84 Case No.13852/84
Western Excavating (ECC) Ltd v Sharp [1978] IRLR 27
Wright v Ladbroke Racing Ltd 26.3.93 Case No.54266/91
1Respiratory health effects of passive smoking: lung cancer and other disorders. EPA/660/6-90/006F United States Environmental Protection Agency, 1992.
2March 1988, HMSO, ISBN 0 11 321131 7.
3Available from HSE Information Centre, Broad Lane, Sheffield S3 7HQ.
4Action on Smoking and Health, 109 Gloucester Place, London W1H 3PH.
5SI 1992 No.3004.
