On 1 July, England finally joins the rest of the UK in banning smoking in enclosed public places and workplaces. GPs could be forgiven for thinking that is the end of the problem of staff smoking - but this may not be the case.
Simply introducing a blanket ban will not end your employees' need to smoke. You owe a legal duty of trust and confidence to your staff members, meaning that you may not act in a way that is likely to destroy or seriously damage the relationship of trust and confidence between you and your existing employees. If you do so, the employee may be able to resign and claim constructive unfair dismissal.
Employers need to balance prohibiting smoking during working hours with maintaining their duty of trust and confidence towards employees.
Take as an example a female employee, who has worked for the surgery for 35 years and has smoked 40 cigarettes a day for the past 40 years.
Under the new law, she cannot smoke anywhere in the building but what happens if she wants to smoke in her lunch break? Can you stop her from doing that? And even if you could, do you want a stressed, anxious and edgy employee counting the seconds until she finishes work so she can light up? Simply telling this employee that she cannot smoke at all during her working day may be a breach of your duty of trust and confidence.
The easiest way to deal with such potential problems is to draw up a smoking policy for your surgery, covering the following points.
- The date Ensure all employees know when the ban on smoking in the workplace comes into effect.
- The impact Set out what the change will mean for your employees (smoking and non-smoking) and your patients. Explain the health benefits of bringing in the law. Here, you should confirm that this law also applies to any vehicle that may be used by more than one employee.
- Policy breach From the implementation date, anyone smoking in breach of this policy will be guilty of misconduct. This will be gross misconduct if the employee continually fails to comply with the policy. This must be linked in to your existing practice disciplinary policy.
- Offer help Your employees may continue to smoke outside working hours - but if they want assistance in kicking the habit, the surgery will provide them with details of non-smoking clinics, and so forth, to help them do that. NICE has suggested that employers give smoking employees paid time off to attend non-smoking clinics, even suggesting that employers contribute to the price of smoking cessation treatment. You are not legally obliged to provide this sort of service. However, if you fund one employee's attempts to give up smoking you will set a precedent and will have to offer the same to other employees who are smokers. The important point is to have a clear and transparent policy and stick with it.
- An explanation of the impact of your policy upon employees who wish to continue to smoke. This section requires the most thought. If your smoker employee nips out every couple of hours for a quick fag, this may annoy non-smoking employees. You could indicate that smokers may only go out during their usual breaks (when other employees make a cup of tea). Or, you could set 'designated' smoking breaks (for which employees are not paid) so their working hours are officially reduced, or their lunch break is reduced accordingly. The next question is where your employees go for a cigarette outside the surgery. What sort of impression will your patients get if smokers are huddled outside and stubs are littered around the entrance? You may want to add a clause that they cannot smoke immediately outside the surgery and anyone doing so will face disciplinary action. A policy can only be relied upon if you can prove that all employees have received it - so either hand-deliver it to all employees or enclose it with pay-slips and ensure they sign a note to confirm receipt.
Rehan Pasha is a an employment law specialist and partner at Aaron & Partners (www.aaronandpartners.com).