By Alan Price, HR Director, Peninsula

Employees who smoke has always been a factor that employers have had to face, however it has become more noticeable since the law came into force banning smoking from indoor areas in 2007. It is a common sight now to witness a group of office workers huddled around a smoking shelter having a quick cigarette break and discussing current events. Whilst this appears to have become the norm, allowing unofficial smoke breaks without considering employees who don’t smoke can cause significant issues in the workplace.

Employees are not automatically entitled to take breaks for the purpose of smoking. However, they can use their statutory breaks to smoke outside of the workplace. All employees who work longer than 6 hours a day are entitled to one unpaid break of 20 minutes. As the current legislation stands, all public buildings, transport and enclosed workplaces should be smoke free, and in addition to that the employee has to comply with any restrictions set by the employer on smoking outside the work buildings, too. The times and length of rest breaks can be agreed with the employer and should be included in the contract.

Although a verbal agreement might have seemed enough initially, look to make a more solid agreement by putting the rules on smoking breaks in writing. This will allow employees to refer to the policy if they are unsure, and you will be able to identify easily if the rules are being abused. Consequently, enforcing the rules will be easier, but this issue depends on what the current agreement is and whether you want to change it. If you want to reduce the amount of time of smoking breaks, then there may be some resistance if it has become an implied contractual term.

If you give breaks for smokers, you are likely to get complaints from non-smokers so consider letting everyone have an equal number of breaks regardless of whether they smoke or not. Otherwise, any unauthorised breaks in addition to statutory rest breaks and contractual rest breaks can be treated as misconduct. If you wish for the smoking policy to prohibit e-cigarettes and vaping, you need to expressly cover both terms, as they may not strictly be included under a smoking prohibition.

Smoking isn’t the primary issue here, it’s how you treat your employees. When it comes to issuing breaks, it is better to be safe than sorry, by remaining fair and consistent, and not showing favouritism to certain employees based on their lifestyle choices. Think practically and focus on prevention of the problem rather than trying to find a solution to an issue that has escalated.