Did you know that England was the last country in the UK to introduce a smoking ban? England introduced the ban on 1st July 2007. Scotland was the pioneer banning smoking in enclosed public areas on 26th March 2006, followed by Wales on 2nd April 2017, while a smoking ban took effect in Northern Ireland on 30th April 2007.
The workplace smoking ban has been in place for over 10 years, yet there remains a degree of confusion as to what employers need to do to enforce the ban. There is still uncertainty as to whether an employer has to provide an outside smoking area for employees who smoke. There is no legal requirement for you to provide a smoking shelter or any other designated smoking area where your employees can smoke. However, if you do decide to provide a smoking shelter, it must comply with smoke-free legislation.
Employees who smoke have no special status in terms of rest breaks and do not get special “smoke breaks”. Working time legislation requires that adult workers whose daily working time is more than 6 hours have an uninterrupted rest break of 20 minutes. It is entirely up to you to decide the exact time and length of breaks. If you do decide to allow employees who smoke to take rest breaks to smoke, you should ensure that this is monitored and ensure that staff who do smoke are aware of these policies. If staff who do smoke don’t comply with your policies, you should ensure that you act quickly to remedy the situation otherwise, you face the risk of resentment among your non-smoking workforce.
Under smoke-free legislation, company cars must be smoke free at all times if they are used by more than one person. However, smoke-free legislation does not apply where a company car is used primarily for private purposes of an employee who has the right to use the company car and is the only person who has the use of the company car. It is, however, illegal to smoke with anyone under the age of 18 in any vehicle. If you have any company vehicles that are smoke free, you display a no smoking sign.
Taking disciplinary action against an employee who is caught smoking in the work place can be problematic if you don’t have a specific policy in place and your employees are unaware of your policy on smoking. However, if there is a clear policy in place, there is nothing stopping you from taking disciplinary action against an employee who has broken the rules.
Displaying no smoking signs around the workplace and having an express provision in your disciplinary rules stating that smoking in the workplace is considered a matter of misconduct, will ensure that there is no uncertainty on the rules regarding smoking in the workplace. Most importantly, if you do decide to take disciplinary action to enforce your no smoking policy, you must ensure that you are consistent in your approach.
A recent employment tribunal found that the dismissal following an allegation that an employee had been smoking at work found the dismissal to be unfair because he employer had previously tolerated staff smoking (McDonough v Bagnall UK Limited).
What about e-cigarettes or vaping? The smoke-free legislation does not apply to e-cigarettes or vaping because it is not lit and no burning takes place. Whether or not you allow e-cigarettes in the workplace is up to you. If you do decide to allow e-cigarettes in the workplace, you must make ensure that you maintain and support compliance with smoke-free requirements by emphasising a clear distinction between smoking and vaping. Clearly state Indicate accurately where vaping is permitted or prohibited and communicate the policy to everyone so that there can be no doubt. In the case of Insley v Asscent Catering, the first tribunal decision to address the issue of e-cigarettes in the workplace, held that a school catering assistant’s suspension for using an e-cigarette on school premises was justified.
HR:4UK can ensure that you have a policy in place which clearly sets out your policy on smoking in the work place which will minimise the risk to your business of any potential misunderstanding on your policy. If you do not have a smoking policy in place or wish to upgrade your service to include this policy, please call us on 01455 444222 or complete an enquiry form here