WITH the smoking ban now just days away, lawyers are warning of some of the extreme enforcement measures that will available to employers.
Employees caught smoking at work once the ban comes into place on July 1 could face instant dismissal, or even find their boss calling the police if they flout the ban.
This week, London-based law firm LG warned that employees ignoring the smoking ban could be sacked for gross misconduct.
“If people have been fairly warned of the potential consequences, yet still, nonetheless, light up, even if most others have gone home, they’re exposing their employer to the risk of a criminal prosecution, so it would be quite fair for the company to see that as gross misconduct and grounds for dismissal, even if it’s a first-time offence for a long-standing employee,� said Caroline Pugh, employment specialist at the business law firm.
Nicky Benson, senior partner and employment law specialist at Bermans, wrote about the ban in her latest blog on this site (see left for link), after reading official advice from Smoke-free England that advised employers to call the police if staff became violent if confronted about smoking.
She said: “It was a tongue-in-cheek blog, but I was surprised that anyone would dream of calling the police – it is certainly a last resort.
“With regards to immediate dismissal, I imagine employers would issue a stern warning first, having made sure that every employee was aware of the no-smoking policy. It will also be important for employers to make sure there is support for people who want to give up and are finding it difficult.
“Flouting the smoking ban in the workplace will be considered gross misconduct, but it can be compared to an employee with an alcohol problem, where in most situations an employer would see if they could help before resorting to immediate dismissal, unless the person was putting colleagues at risk.�
Disputes over dismissals which arise as a result of the smoking ban will be heard by employment tribunals, although local authorities are responsible for policing the smoking ban in their areas and will bring prosecutions before magistrates’ courts.
Penalties include fines of up to £5,000 plus a criminal conviction for both employers and individuals who flout the ban.
But Caroline Pugh admits that “it is very unclear how far organisations can reasonably go� in enforcing the new rules.
She added: “The law makes the management of the premises responsible to enforce the new ban, but it’s far from clear how this will work in practice.
“Where some individuals light up after hours in a social situation, or perhaps when entertaining clients and business contacts, other colleagues may be very reluctant to challenge them.�