Employment: No smoke without fire

From 1 July 2007 the smoking ban comes into force in England under the Health Act 2006. The ban came into effect in Wales and Northern Ireland in April 2007 and similar provisions have been in force in the Republic of Ireland since March 2004 and Scotland since March 2006.

By now most employers are aware that smoking will not be permitted in any workplace or public place that is 'enclosed' or 'substantially enclosed', including public and work vehicles (with a few exemptions).

For months employers have been faced with a deluge of practical tips on how to comply with the ban. These include introducing a no-smoking policy, communicating and consulting with the workforce, removing indoor smoking rooms, putting up the required signs and considering support lines and outdoor shelters for smokers.

The penalties for non-compliance are clear. The legislation introduces several criminal offences, including permitting smoking in a smoke-free place, smoking in a smoke-free place and failing to display the required signage. The penalties are fines of up to £2,500 depending on the offence.

Implications for employers
What recent commentary has not addressed are the wider implications for employers.

Some employers may seek to go further than the legislation requires, for example by requiring clients or customers not to smoke while employees visit them in their homes. This issue is not covered directly by the legislation, but employers may want to protect employees from exposure to second-hand smoke - and themselves from potential claims from employees.

This type of issue will need to be addressed carefully and it may be appropriate for employers to add smoking restrictions into any service agreements with clients. Employers are also likely to make express provision in their policies for employees not to smoke while visiting clients in their homes. However, if the client gives consent for the employee to smoke, would trying to enforce such a provision be going a step too far?An analogy can be drawn with an employer who expects certain standards of dress from employees - purely because a client does not mind if an employee wears jeans does not mean that this is acceptable to the employer. Similarly, it is not uncommon for some employers to have a 'no drinking on the job' rule, which can raise issues about an employee's ability to join in and have the odd tipple while entertaining clients.

Employers may find that employees are taking longer breaks in order to smoke outside the workplace. The Working Time Regulations set out the rest periods that an employee is entitled to, and so long as an employer complies with these requirements it is entitled to refuse employees additional smoking breaks in order to smoke outside the workplace.

The problem arises where employees have previously been allowed to take smoking breaks and as a result a custom has built up of allowing such breaks. If this is then curtailed the employee may be able to claim that the employer has unilaterally changed an implied term of their contract. The best advice for employers in this situation is to vary the custom, but to do so after a period of consultation.

The human right to smoke?
Evidence from Scotland highlights that disgruntled employees are willing to go to court on the basis that they believe they have a right to smoke at work. Some have even argued that the smoking ban amounts to a breach of their human rights, most notably a breach of their right to respect for their private life.

While public sector employees can sue their employer directly under the Human Rights Act 1998, those working in the private sector would have to argue that any such breach impacts on the employer's existing employment obligations, for example its duty of trust and confidence. It is unlikely that any such human rights angle would succeed, as it is necessary to balance the employee's ongoing wish to smoke against the right of colleagues to work in a smoke-free environment.

Regardless of the merits of a human rights claim, this does not negate the risk of potential litigation. Employers need to be careful as to how they enforce the smoking ban. Arbitrary implementation of the ban, for example penalising some employees more than others for smoking, could in certain circumstances lead to claims for breach of mutual trust and confidence and constructive dismissal.

Employers have a legal obligation to enforce the new law or face criminal penalties. This is one area where it may may be costly for the employer who turns a blind eye to those who have the odd crafty cigarette.

Employees who are dismissed or disciplined for highlighting breaches of their employer's no-smoking policy can claim whistleblowing protection. As employers have found to their cost in other contexts, employees do not need one year's service in a whistleblowing action (as is the case for an ordinary unfair dismissal claim) and they can rely on uncapped compensation.

As a starting point in defending such a claim, an employer would need to demonstrate that the no-smoking policy is enforced consistently and effectively. However, in practice it may well be that employers will find few people breaking the ban: based on the experiences of other countries it is expected that people will respect the new law and that peer pressure from co-workers who police it actively will reduce the incidence of breaches.

Another issue that may become apparent after the ban is introduced is whether employers will avoid hiring employees who smoke (or are ex-smokers). This is common practice in the US, fuelled by healthcare cost considerations. While nicotine addiction is not covered by the Disability Discrimination Act 1995, disabilities that are a consequence of smoking habits are covered, which can give rise to claims.

Similarly, it is not unforeseeable that an inventive employee might try to claim under another strand of discrimination, for example by alleging that smoking is a habit associated with older workers or certain religious groups (the prevalence of smoking among male Muslims is almost twice as high as the rest of the population).

Although the smoking ban may lead to a number of problems not envisaged by many employers, it is not all bad news. It is estimated that 34 million days each year are lost in England and Wales through sickness absence caused by smoking - now employers will just have to deal with employees who become stressed because they cannot smoke.

•David Harper is head of the employment practice and Anya Switalski an associate at Lovells