Is my Employer in the Wrong?
Q.
Circumstances are that whilst employed we are allowed to smoke outside the premises between 9am and 5pm on a daily basis. However after 5pm it is not possible to smoke as the outside area has been made secure.
I argue that they are not providing Equal Opportunities to all staff and therefore those who are working after 5pm are being discriminated against under the Equal Opportunities.
Is there any answer to this?
A.
The proposal of a smoking ban brought up many questions about smoking breaks and the workplace, and employers were encouraged to come up with smoking policies that would clearly delineate if smoking is acceptable anywhere, or at any time, on their company property.
When the smoking ban came into force smoking, by law, became acceptable only in outside areas that are not substantially enclosed. “Substantially enclosed” means areas that have a ceiling or roof and which have walls around at least half of the enclosure (either consistently or in aggregate). This definition even includes vehicles used at the workplace. The ban does not allow for designated smoking rooms or areas that are enclosed or substantially enclosed.
Indeed, the smoking ban was passed in order to protect the rights and health of non-smokers in the workplace. It means that employees who smoke do not have any right to smoke in their workplace, while non-smoking employees do have the right to a smoke free workplace. Smoking on the outside of a workplace premises, therefore, is allowed at the employer’s discretion but is not something that is guaranteed to smokers.
In no part of the United Kingdom are employers required to provide smoking shelters for their employees, nor are they required to allow smoking anywhere on their properties, so your employer may feel that in allowing smoking breaks outside between 9am and 5pm (s)he is already more than generous with smoking employees.
If you believe that your employer is trampling your right to smoke at work by securing the outside hours after 5pm then you must remember that you have no legal right to smoke at work. Whether or not to allow smoking on outside company property is at the discretion of your employer. However, employers who do not have a coherent smoking policy or who change policies often and without consulting employees or employee representatives, should hear your concerns. Consider speaking with your employer about how the securing of the outside area affects employees after 5pm, and discuss the issue with your trade union if applicable. If you find no satisfaction in these two routes you may want to consider speaking with a private solicitor to find out more about how the law regards your particular situation.
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