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Smoking - health and safety |
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As long ago as 1997, a secretary in a law firm was able to successfully argue
constructive dismissal because the employing firm refused to implement a
no-smoking policy (Waltons and Morse [1997]). Since then, of course, things
have moved on and we can now expect the Health Bill (which contains
compulsory workplace smoking bans) to be in force in 2007.
In the meantime, it is important to remember that refusal by an employee to
be exposed to smoke will probably amount to the raising of a health and
safety complaint by the employee. The point, of course, is that any dismissal
for a reason connected to health and safety is automatically unfair. Indeed,
it is possible that, if bar staff raised objections now to being in smoky
environments, then they would be able to rely on those provisions (ie in
advance of the Health Bill becoming law). In response, an employer might be
able to argue that there is an implied term that bar staff have to accept
working in smoky environments in order to be able to discharge their duties,
although it is by no means certain that the courts would be willing to imply
such terms into employment contracts (or even to uphold express terms).
Do not forget that, if the reason for any detriment or dismissal is connected
to a health and safety complaint, the tribunal can find the detriment to be
unlawful. Accordingly, it is arguable that the only safe course for an employer
to take is to accede to any objection made by a member of staff who is
currently exposed to smoke in the working environment. Needless to say, not
everyone will agree with this analysis, which derives from an article in [2006]
69 Employment Law Journal 14.
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June 2006 |
