Employment law clinic: Smoking breaks in the workplace

Katherine De Souza, partner and head of employment at Marriott Harrison, offers guidance on the legal status of workers' smoking breaks.

Q Is a worker entitled to a smoking break?

A No, a worker has no right to a break specifically for the purpose of smoking. However, an employee who works more than six hours per day has the statutory right to a rest break of at least 20 minutes away from their workstation under the Working Time Regulations 1998. A worker may therefore use their statutory rest break to smoke, subject to any restrictions on smoking in or near the workplace.

Q Can an employer prevent a worker from taking a smoking break?

A An employer cannot prevent a worker from taking their statutory rest break. An employer can, however, impose rules for health and safety reasons on where a worker can or cannot smoke in or near the workplace. The employer can prevent an employee from taking any further breaks other than their statutory rest break. In practice, most statutory rest breaks are taken in the form of a lunch hour.

Q How should an employer deal with resentment over smoking breaks?

A While the Working Time Regulations do not make a distinction between smokers and non-smokers taking rest breaks, employers often formally or informally allow workers to take smoking breaks in addition to statutory rest breaks or lunch hours. This practice can lead to resentment from non-smoking staff, who may perceive that their smoking colleagues benefit from additional breaks.

Any failure by an employer to deal properly with a grievance raised by a non-smoking employee may lead to a claim for breach of contract, and thus to a claim for constructive unfair dismissal. An employer should either prohibit all breaks other than statutory rest breaks or lunch hours, or ensure that non-smoking staff have an equal number of breaks.

Q Can an employer ban smoking breaks in the workplace?

A An employer has a common law and statutory duty under the Health and Safety at Work Act 1974 to ensure the safety of their employees. The legislation does not refer specifically to prevention of smoking or passive smoking. However, the EAT held in the case of Waltons & Morse v Dorrington [1997] IRLR 488, which involved a claim by a non-smoker that there is a term implied into all employment contracts that "the employer will provide and monitor for his employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties". Breach by an employer of this implied term can lead to a claim for constructive unfair dismissal, as it did in Waltons & Morse.

A corresponding claim of constructive unfair dismissal by a smoking employee in relation to the imposition of a ban on smoking in or near the workplace is unlikely to succeed, provided an employer introduces the restrictions in a reasonable manner. The Scottish EAT held in the case of Dryden v Greater Glasgow Health Board [1992] IRLR 469 that there was no express or implied contractual term permitting an employee to smoke (in this particular case, 30 cigarettes a day).

Q What should an employer do?

A Employers should adopt a policy on smoking in the workplace. If no restrictions have previously existed, then a reasonable procedure for adoption should be used. This could include a survey of workplace opinion, provision of information on smoking and health issues, consultation with representatives and individuals, help to enable smokers to adapt to the new restrictions, and the introduction of the restrictions over a reasonable period.

Once the restrictions are in place, an employer should make it clear that failure to adhere to them is a disciplinary offence. However, if a worker is in breach of a smoking ban or restriction, is it unlikely that instant dismissal will be regarded as falling within the range of reasonable responses for unfair dismissal purposes, unless the smoking in question constitutes a particular fire hazard (see Marks & Spencer Plc v O'Connell, unreported, EAT 230/95).

The Health and Safety Commission has indicated that it is in favour of an Approved Code of Practice on passive smoking at work. The draft code recommends that employers should introduce a policy on passive smoking at work, which gives priority to the needs of non-smokers who do not wish to inhale tobacco smoke.

Statutory regulations already require employers to make arrangements so that non-smokers using rest areas are protected from any discomfort caused by tobacco smoke.