Legal advice: Fag breaks and the law

Much has already been written about the Health Act 2006 and it is perhaps no surprise that almost all the press coverage has related to the impact of the new laws on customers in pubs and clubs. As an employment lawyer, I am a little disappointed that so little column space has been devoted to the impact on workers who themselves smoke.

In most traditional offices, smokers have already been relegated to the car park, as more and more offices voluntarily have declared themselves smoke-free, but on the whole this is not the case with many licensed premises (whether in the licensed area itself or any associated office).

Although the legislation has clearly been designed to benefit workers in smoke-filled environments, it will probably not be appreciated by those whom we currently allow to smoke at work or who enjoy cigarette breaks or even dedicated smoking rooms. Have they a right to complain?

A right to smoke?

In short, employers have to ask whether these breaks and perks have become, perhaps through course of conduct, contractual rights for those who enjoy them. If so, what will be the impact of the new smoke-free premises regime which will come into effect in England on July 1, 2007, and Northern Ireland on April 30 (and which is already in place in Scotland and Wales)?

As most of us will be aware, from July 1 it will become an offence in England to smoke or (for employers) to fail to prevent smoking in a smoke-free place.

The legislation is already in force in Wales and Scotland. Such places include all 'enclosed' or 'substantially enclosed' places which are open to the public or which are a workplace for more than one person (the bar, a meeting room, a side or full office) and will probably also extend to work vehicles.

An 'enclosed place' is defined as one which (a) has a ceiling or roof; and which (except for doors, windows and passageways) is (b) wholly enclosed (either permanently or temporarily). A 'substantially enclosed' space includes premises with a ceiling or roof where there is (a) an opening in the walls; or (b) an aggregate area of openings in the walls which is less than the prescribed area (that is, less than half their perimeter consists of an opening).

Section 6 of the Health Act then sets out the obligation to erect no-smoking signs in such places, and a system of fixed penalties and enforcement rules will be put in place for the whole thing.

Out in the cold

The purpose of all this, we are told by the government, is to both protect the non-smoker from what are stated to be the proven ill-effects of passive smoking and, frankly, the smoker from themselves.

So where does this leave our employee smokers? Well, certainly they cannot smoke in such enclosed places and so they will almost certainly be out in the cold. But the real question, perhaps, is when? What will happen where employers have created dedicated smoking rooms or gradually allowed a certain number of 'fag breaks' a day for those in need? Will those spaces or breaks still be required? Much will depend on whether these breaks or rooms have become a contractual entitlement of the smoker, since there is no statutory right for them to have such breaks or facilities.

The first thing to note is that a smoking room (or external shelter) will almost certainly comprise an enclosed or substantially enclosed space in which one or more people will work. Such a facility can probably no longer be provided even if it is an express contractual entitlement.

This leaves cigarette breaks. Now, if there is an express contractual right to such a break, provided the employer does not breach the no-smoking or other legislation, it seems fairly clear that such breaks can and should still be allowed. This will, of course, leave staff huddling in car parks and shop doorways unless a shelter can be devised which escapes the criteria above.

Unwritten rights

It would be unusual, though, for many written contracts to contain such rights and if the right to such breaks is contractual at all (which is debatable) then it is likely to be an implied one based on a continued acceptance by the employer of the practice. Any such 'agreement' from the employer will clearly have been made against a landscape where smokers were being 'deprived' of otherwise working in a smoking environment.

In short, any agreement could perhaps best be expressed as being 'for so long as you are giving up an otherwise legal right to smoke in the bar or at your desk, you can have the extra breaks'. This doesn't offer smokers much hope of pressing their rights since that 'right' has gone. Perhaps more importantly, the activity they had been asked to give up in return for their smoking breaks has become unlawful.

In government guidance, an objective of the legislation was expressed to be 'saving thousands of lives over the next decade by reducing exposure to hazardous second-hand smoke and the overall smoking rate.' Given that part of the rationale, therefore, is to help people quit, any ambiguity in such matters is unlikely to be resolved in the smoking employees' favour. It seems, then, that much will be left to the discretion of employers to decide whether they will allow 'fag breaks' outside and whether they can devise a suitable shelter for their staff.

It also leaves me wishing, not for the first time, that I had already patented the designs and bought shares in companies specialising in patio heaters!