Are employers legally obliged to provide smoking areas for nicotine-addicted staff?
It has long been a controversial issue in the workoversial issue in the workplace whether staff should be allowed to smoke on the premises. If so, should they be allowed to smoke freely in common areas? What about in their own offices? A designated smoking area? Or, should the hand of big brother ban smoking altogether on the premises (and/or in work time) and, if so, why?
Without doubt, the safest course for an employer is to ban smoking altogether in the workplace. Increasing public awareness and concern at the effects of passive smoking highlight the continuing and pro-active duty on the employer to provide a safe place to work.
Employers must keep pace with scientific and medical research and development. Medical knowledge of the risk of passive smoking has increased and whereas once, a non-smoker may have found the situation merely irritating, it has now been accepted that passive smoking can cause real harm.
A spate of recent cases have shown that it is now an implied term into every contract of employment that the employer will provide and maintain a working environment that is reasonably tolerable for all employees. Furthermore, it is also an implied term that an employer will reasonably and properly afford an opportunity for its employees to obtain redress of any grievance. This means that by allowing smokers to continue to smoke on the premises, the employer could be breaching this implied term, allowing a passive, non-smoker to resign and claim constructive dismissal: so ignore the complaints of passive smokers at your peril.
But what about the rights of the smoker? It is unlikely that the smoker's contract of employment will contain the express right to smoke at will (but it is a point worth checking). What about the situation where an employee unilaterally imposes a ban in a workplace where smoking has previously been permitted? Clearly, speaking to the staff and achieving a consensus in favour of a ban is the optimum solution. If that is not forthcoming then can the employer simply impose a ban? It seems that it can. The EAT have confirmed that the introduction of a no-smoking policy does not constitute a breach of the employment contract, entitling the employee to treat himself as constructively dismissed.
The EAT have also rejected the other argument that smokers should have access to a 'smoker's area' during working hours. The ultimate issue is the purpose for which the purpose for which the no-smoking policy has been introduced. Where the policy is introduced for legitimate purpose, which is usually the health and safety and welfare of the non-smoking employees then those employees who wish to smoke cannot insist that they do so at work.