Employers have to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. Consequently where a risk to health and safety has been demonstrated, the employer must take action to deal with that risk.
Under the Health and Safety at Work Act 1974, the employer must:
“Provide and maintain a safe working environment which is, so far as is reasonably practical, safe, without risk to health and adequate as regards to facilities and arrangements for welfare at work”
The employer has a duty in common law to take responsible care to protect the health of the employees. An employer who receives a complaint about the effects of smoking, but ignores it, could be sued for any resulting damage to health. Equally employers may also find themselves liable for damage to an unborn child if a pregnant employee has been exposed to passive smoking.
Employers must be mindful that it is unlawful not to provide means for an employee to complain or to discriminate against them for bringing up a complaint. If an employer adopts a “put up with it, or leave” attitude either to a request for a smokefree workplace by a non-smoker or an employee insisting on their right to smoke in the workplace, it could be construed as constructive dismissal if they do leave, unless the correct disciplinary procedure has been taken.
Therefore the employer has the right to introduce a smoke free policy without suffering adverse legal consequences from employees. However we would recommend that a consultative process be undertaken as described in the following pages. We would also advise that all changes of policy be introduced gradually to promote compliance.
It is vital that the right of the non-smoker comes
first. “Human beings
can only be healthy in a healthy environment, dying before our time is the
ultimate
social exclusion”.