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Jan 2020

Smoking breaks and the growing tide of extra annual leave for non-smokers

Following the recent decision by a managing director in a UK Logistics firm to offer non-smoking employees extra annual leave, workplace smoking policies have come under additional scrutiny.

Obligations as an employer

As an employer, there is no statutory “right” to provide employees with a smoking break. However, under the Working Time Regulations 1998, employees are legally entitled to one rest break of 20 minutes for working 6 hours or more. The break can take the form of a tea break, a lunch break or a smoking break and does not have to be paid.  

Currently, many employers permit employees to take reasonable smoking breaks, without a formal policy in place. As such, there is a risk that employees may abuse this break causing further friction between smokers and non-smokers within the workplace.

Following the implementation of section 7 of the Health Act 2006, smoking in all public places and workplaces became prohibited. Employers are able to provide designated 'smoking areas' but these are subject to various requirements under the legislation. Consequently, employers should be mindful of their potential liability if they fail to have the appropriate policies and signage in their workplace and vehicles.

In addition, given the prevalence of “vaping”, which is not strictly caught by the legislation, employers should also ensure they have policies and procedures in relation to vaping in the workplace.

What can employers do?

As an employer you can implement various policies regarding smoking including; a non-smoking policy, a smoking breaks policy or by providing additional annual leave for non-smokers.

It would be beneficial for employers to put such policies in place, as it enables them to police the frequency and duration of smoking breaks and consider disciplinary action where an employee is perceived to be abusing that “right”. These policies should be included in your staff handbook which should be issued to all new employees and be accessible somewhere central (such as your intranet/shared drive) so that it can be reviewed and accessed by the company’s employees.

Furthermore, when drafting such policies, employers should consider who is eligible under the policy, how it is regulated, consequences in the event of a breach and who is responsible for maintaining the policy.   Employers should also ensure that such policies work hand in hand with their existing health and safety policy and disciplinary policies and procedures.

What are the legal ramifications?

When considering which policies to implement, an employer should consider the legal ramifications before doing so.

Whilst the Equality Act 2010 (Disability) Regulations 2010 specifically excludes addiction to any substance as a disability, under the Equality Act 2010, the Employment Appeal Tribunal in Power v Panasonic [2003]  has held that depression caused by an excluded condition (alcohol abuse) was not prevented from being a mental "impairment". This approach is likely to be adopted in cases involving smoking and employers should be mindful that there is an exception in relation to any addiction which has arisen as a result of medically prescribed drugs or treatment.

As such, policies and procedures will need to be drafted carefully so as to avoid any liability for employment claims, including discrimination.

If you would like advice on the contents of this article or your policies and procedures, contact the employment team at Thackray Williams on 020 8290 0440.

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