The legal issues associated with employee exposure to secondhand smoking in the workplace

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Employers who fail to address the issue of smoking in the workplace effectively are opening themselves up to the potential threat of legal action including costly compensation claims in the future.

There is now overwhelming evidence supporting the dangers of secondhand smoking. Employers can no longer claim to be unaware of the risks posed by secondhand smoking.

Tobacco smoke in the workplace is a hazard, which needs to be assessed like any other workplace hazard. By not taking adequate steps to reduce the danger, an employer will be in breach of their duty. They cannot wait for an employee to become ill before action is taken. If secondhand smoke exists in the workplace the employer must carry out a risk assessment.

The safest course of action an employer can take is to implement a no-smoking policy in the workplace to protect the right of all employees to breathe smoke free air.

Here is a brief overview of legislation, which affects smoking at work:

The Health and Safety at Work Act 1974. 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.

The Workplace (Health, Safety and Welfare) Regulations 1992. This is a European Union Directive, which states that where rest areas are provided for employees, non-smoking areas must be provided to entitle workers to breathe smoke free air during breaks.

Safety and Health at Work of Pregnant Workers 1992. This EU Directive Seeks to safeguard the health and safety at work of workers who are pregnant, who have recently given birth or are breastfeeding.
Employers are required to assess the risks to pregnant women being exposed to secondhand smoke and to take appropriate measures to minimise those risks.

Employment Rights Act 1996. Non-smokers may claim that exposure to smoking at work has caused them distress or forced them to leave their job and can cite the employer as being in breach of the Employment Rights Act 1996.

The Management of Health and Safety at Work Regulations 1999. This requires employers to make an assessment of all risks to health and safety, to identify any group of employees especially at risk and to take preventive measures.

UK Cases

Veronica Bland A local government employee reached an out of court settlement of £15,000 with her employers after suing them for exposure to tobacco smoke at work which she argues caused chronic bronchitis

Michael Dunn A casino worker claimed that he developed asthma as a result of secondhand smoking. He accepted an out of court settlement of £50,000

Beryl Roe An employee of Stockport Metropolitan Borough Council reached an out of court settlement of £25,000 in relation to her claim for illness caused by secondhand smoking

The Dryden Case This tribunal ruling resulted from an employee who tried to claim that the introduction of policy restricting smoking at work was a breach of contract. It makes it clear that an employee who smokes cannot claim to have a right to smoke at work or to have an area designated for smoking purposes.