Handling employee smoke breaks

Handling employee smoke breaks can sometimes be tricky. A worker has no right to a break specifically for the purpose of smoking, although an employee who works more than six hours per day has the statutory right to a rest break of at least 20 minutes away from their workstation under the Working Time Regulations 1998.

By Metis HR.

So an employee may use their statutory rest break to smoke outside the workplace, subject to any restrictions imposed by you and the company on smoking outside workplace buildings.

All enclosed workplaces are required by legislation to be smoke free. As an employer you must also display ‘no smoking’ signs in all workplaces and vehicles - no smoking signs in Wales must be in both Welsh and English. If signs are not displayed a business could be fined up to £1,000. Make sure people don’t smoke in enclosed work premises or shared vehicles. Staff smoking rooms aren’t allowed, smokers must go outside.

You cannot prevent a member of staff from taking their statutory rest break. If a worker takes any breaks in addition to their statutory rest break or any contractual break, you may treat this as misconduct. In practice, most statutory rest breaks are taken in the form of a lunch hour.

The Working Time Regulations Act does not make a distinction between smokers and non-smokers taking rest breaks, employers often formally or informally allow workers to take smoking breaks in addition to statutory rest breaks or lunch hours. This practice can lead to resentment from non-smoking staff, who may perceive that their smoking colleagues benefit from additional breaks.

If a non-smoking employee makes a complaint about getting fewer breaks than a colleague who smokes you must ensure that you deal with this appropriately via the Company’s Grievance Procedure. It may be worth prohibiting all breaks other than statutory rest breaks or lunch hours, to ensure that smoking and non-smoking staff have an equal number of breaks.

We recommend that you adopt a policy on smoking in the workplace and amend your discipline policy to cover smoking breaks and smoking in a non-designated area. The National Institute of Clinical Excellence recommends including in smoking policies a section on smoking cessation, providing information on local stop smoking support services.

The legislation on smoking at work does not extend to care workers working in people’s own hones as they are not public places. If you are an employer in the care sector, we recommend that any smoking policy that you develop specifically addresses this aspect of the legislation and your attitude on whether employees may smoke with clients when they smoke or whether you would expect a non-smoking member of staff with chest ailments go to a client’s home who smokes, even if they complain? It is important to consider what, if anything, would be said to clients in receipt of care. For example, would you consider asking the client not to smoke whilst the carer is present?

With the popularity of e-cigarettes, you may wish to make a policy statement on the use of e-cigarettes, or vaping, in the workplace. If this is your choice, you should ensure that your smoking and discipline policies expressly cover e-cigarettes. As there is a fine of up to £2500 in England enforced by Environmental Health Officers and £200 in Scotland, we recommend that you make your staff aware in their handbooks that any fines charged will be passed onto the employee and taken from their salary direct. It is good practice to ensure your smoking and non-smoking policies stretch to your business and shared work vehicles; this includes company cars, taxis’, buses, vans, goods vehicles used by more than one driver, company cars used by more than one employee. A worker can only smoke in a company car only they use and if you agree to it.