Smoking policy

Hopefully you’ve banned smoking on your salon floor by both your staff and clients, but it’s highly likely members of your team take a cigarette break either in the staff room or outside on the pavement. However, it might be time to re-think your smoking policy in light of the new legislation that will ban smoking in all workplaces and public places. But are you clued up about what this means for your salon business? We present you with some common smoking scenarios and information to ensure they don’t escalate into issues in the workplace. .“I Am Entitled To Smoke At Work. I’ve Smoked Since I First Started Here.” There is no legal right to light up at work. However, if smokers have been happily puffing away at their workplaces for years, that habit may have crystallised, in legal terms, into an implicit, unwritten contractual entitlement. It could be a breach of employment contract to withdraw the right. Equally, it could be a breach of the employer’s duty of trust and confidence to force smokers into cold turkey. However, if the matter came to an employment tribunal it is likely that a tribunal would weigh in favour of a smoke-free environment, against the dependence of a group of smokers, especially if non-smokers specifically wanted the change. “But Smoking Is An Addiction and I Need Help.” Wrong. Or at least, not as far as employment law is concerned. The Disability Rights Commission Code of Practice, to be read in conjunction with the Disability Discrimination Act 1995, specifically excludes addiction to or dependency on nicotine from its scope. So employees cannot demand that you make reasonable adjustments to allow them to indulge their habit. That does not extend to the effects of smoking, though. “I Need Time Out To Light Up.” Can an employee demand fag breaks? Actually, no. Employees are entitled to their rest breaks under the Working Time Regulations 1998 – 20 minutes in every six-hour period – but they cannot demand extra time unless this has become a convention in the workplace, which has taken on a contractual force. “But It’s The Pavement And It’s Outside The Salon – I Can Smoke Where I Like.” If you have a specific clause in contracts that prevents employees from smoking within, say, 10m of office premises, then this is probably enforceable and could be the cause of disciplinary action if breached. But unless smoking on the doorstep also breaches health and safety, it is unlikely to be reasonable grounds for dismissal, as Marks & Spencer learned to its cost (around £9,000) when it was taken to the tribunal by Mr O’Connell, a security guard who had been sacked when he nipped out for a quick puff on the pavement outside one of its stores. “But You’re Infringing My Human Rights If You Stop Me Smoking!” Human Rights legislation is unlikely to assist as an employer will be acting to protect the health and freedom of others in the workforce if it bans or restricts smoking. Basically, it allows governments to introduce legislation that may be unpopular with some, but is for the good of the majority. “But You Can’t Force The Change On Me!” Some employers have recognised both the benefits to the business and the obvious health benefits of introducing a smoke-free environment. They have actively encouraged employees in the decision-making process and have provided those who smoke and want to quit with positive healthcare advice and support, for example, by providing nicotine patches and smoke-aversion classes. Although no-smoking policies are a matter of course within many organisations, if you do not have one yet, you may like to consider implementing one. If introduced as a policy, rather than a contractual change, employees may be more ready to accept it. But check whether you may have given employees implicit rights before pressing ahead with this. “And Why Won’t You Take Me On If I Smoke?” An individual’s ‘smoking status’ is becoming a factor in the recruitment process. Certain industries and professions may require higher standards of fitness that most smokers cannot attain. But employers paying private healthcare and life assurance premiums that are inflated by the smokers in their workforces may be pleased to exclude smokers from their workforce. Indirect discrimination such as this can be justified if employers show good business reasons for the exclusion of smokers