Richard Nicolle and Rebecca Bennett explain the diplomatic route to banishing workplace smoking

The last decade has seen a seismic change in attitudes towards smoking in the workplace. Ten years ago it would have been a brave employee who complained about smoking, but now an employer who fails to take steps to restrict or prohibit workplace smoking runs the risk of non-smoking employees raising grievances, resigning and claiming constructive dismissal, or even claiming that exposure to passive smoking in the workplace has damaged their health.

The Government aims to reduce the number of smokers and minimise the risks from passive smoking. It recently published proposals to eliminate or reduce smoking in the workplace and public places, as well as licensed premises (albeit with a compromise whereby it will be permitted in non-food-serving pubs). Many companies have already taken the initiative – JD Wetherspoon, for example, announced that it will ban smoking in all of its 650 pubs by May 2006.

All employers have statutory and implied obligations to provide employees with a safe working environment. Employees have succeeded in claims for constructive dismissal where their employer has failed to take action in response to complaints of exposure to smoke. Employees have also claimed that exposure to passive smoking has damaged their health. For example, in August 2003 there was a reported £50,000 out-of-court settlement to a London casino worker following his claim that he had developed asthma due to passive smoking at work. The stakes for employers are high and the increasing publicity given to the dangers of passive smoking will inevitably increase the potential exposure of employers who fail to take reasonable steps to safeguard the health and safety of their employees.

It was recently reported that four employees of US company Weyco resigned rather than accept an ultimatum to stop smoking completely and not just in the workplace. The company, a healthcare products provider, considered smoking incompatible with its image. There have also been reports of a small number of UK employers seeking to introduce similar bans on the basis that customers may object to employees smelling of nicotine. Are these bans enforceable?

For new recruits no difficulty should exist if employers wish to specifically ask whether applicants smoke and even go so far as refuse to employ a smoker. Addiction to nicotine is expressly excluded from the disability discrimination legislation. While individuals may try to argue that their addiction is a symptom of an underlying psychological condition and is, for example, necessary to alleviate the symptoms of stress or panic attacks, these types of claims would be extremely problematic. However, employees who have a disability caused or exacerbated by smoking do have protection under disability legislation.

Employers would be recommended to consult with existing employees before introducing a ban and to provide employees with a transitional period before a complete ban takes effect. The consequences of breaking the ban should be made clear and then applied consistently. Employers should also consider whether such bans should be extended to clients visiting the premises.

Employers may have difficulty, though, in justifying the dismissal of an employee who is found to have smoked outside working hours but did not arrive at work smelling of nicotine. Employees subject to a complete prohibition on smoking may also try to argue that this contravenes the right to respect for private life under the Human Rights Act. As such, it is recommended that bans only extend to smoking at or immediately prior to attending work.

Richard Nicolle is a senior solicitor and Rebecca Bennett a solicitor in Denton Wilde Sapte’s employment and benefits practice.