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Is my Employer in the Wrong?

By: Beth Morrisey MLIS - Updated: 19 Apr 2013 | comments*Discuss
Smoking Smoking Ban Smoking At Work


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?

(Mr Ken Atkins, 2 October 2008)


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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I had to leave my job as I my working tax credits have stopped because I did too many hours. And without that I couldn't put my son in nursery so I explained it all to my boss And now today was ment to be payday but they haven't payed me I mean I worked really hard for that money I'm a single mum! How can they do this to me?!
Tanya - 19-Apr-13 @ 7:08 AM
I have recently applied for a job and on the job spec. in which they gave me it states in the "Basic skills,Aptitude and requirements" that you must be a "NON-SMOKER" is this legal.Thanks for any feed back
gaz - 29-Feb-12 @ 2:51 PM
Hello,I am working at supermarket I have many collegues who are from the same country as me and even my supervisor is form the same country. When we are doing our work and sometimes discussing how ourjob might be done fast and etc. or when we are getting instructions for our job, manager who is not directly related with our work forbids us to use our native language. is that racism or discrimation?
Sar - 7-Feb-12 @ 11:52 AM
I recently applied for a job within my company. I have been with this company for 11years and have had several promotions within this time. I was applying for a job which would be a demotion from my current supervisors role.I attended a interview with 2 managers and no representative from our HR department. I have 8years supervisor experience but was unsuccessful in my application. The successful candidate has no chargehand/supervisor experience.What grounds do have to appeal this.
Cathy - 29-Sep-11 @ 8:19 PM
I work for the biggest supermarket chain here in the UK. We have asked our employers if there are any vacancies and were told NO however they have taken on eastern europeans recently. Is there anything that we can do?
Chelle - 26-Jul-11 @ 12:04 PM
Jacq Non-smokers do NOT take more/longer toilet breaks than smokers - what on earth made you think they did? You do not have any right to smoke - this is a figment of your imagination. What you do have, however, is an addiction - to the nicotine contained in tobacco. Perhaps the event your boss has been on has advised your boss to offer employees who smoke help/assistance to cure your addiction.
ele - 5-Jul-11 @ 9:34 PM
I would like to know my rights please.We have a smoking shelter at work, I have 3 fifteen minute breaks a day, 2 of which are paid.During those breaks I choose to go and smoke, along with other members of staff, our boss is attending an event to stop smoking in the workplace, and to find out how revenue is lost through employees who smoke.I do feel victimised as a smoker, especially when members of staff who don't smoke will take numerous toilet trips for anything up to 15 minutes a time, and nothing is said or done about it.Would appreciate some advice.
jacq - 26-May-11 @ 5:03 PM
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