Real Drag!

The health risks of smoking are well documented but what about the employment risks?

The smoking ban in public places is in force but what about the employee who smokes at work? Can he be fairly dismissed or will he get off with some kind of reprimand or warning?

A recent case provides a lesson for employers and smokers alike.

Mr S worked in a tyre factory and had done so for 12 years. In view of its use of flammable products, there was a strict no-smoking policy in non-authorised areas and the employer’s disciplinary policy provided that smoking in a prohibited area could amount to summary dismissal for gross misconduct.

After the smoking ban came into force, all staff attended a presentation which made it clear that smoking in any part of the factory was prohibited, but that smoking outside was allowed. A plan of the factory identified the places outside where staff could smoke and no smoking signs were displayed throughout the building.

In October 2006, cigarette butts were found inside the factory and so all staff were reminded again of the policy.

A month or so later, Mr S had a break from work due to production problems. In the staff locker room he opened the fire door and sat at the door smoking.

He was seen, suspended and called to a disciplinary hearing.

He was sorry for what he had done, said he was suffering from depression and that he felt under pressure at work and he asked for his long service to be taken into account.

Mr S was dismissed and so just before Christmas he lost a well paid job with a devastating effect on himself and his family.

Was it fair or unfair?

In the circumstances of this case it was held to be fair by both an Employment Tribunal and the Employment Appeal Tribunal.

Three questions are highly relevant in deciding whether such a dismissal is fair or not:

1. Is there a workplace smoking policy?

2. Do employees know (from the policy or their contracts) that smoking in the workplace is gross misconduct?

3. Have the policy and its consequences been properly explained to employee?

Provided the answers to these questions is yes, an employer can fairly dismiss the employee.

The message for employees is do not smoke in no smoking areas; it’s a real drag to be dismissed.

Published 01/11/2007. The author of this article is Jon Loney