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Smoking dismissal was fair

With the implementation of the smoking ban earlier this year, all employers should have a smoking policy in force and breach of that policy should be viewed seriously. But can employers dismiss employees for a one-off breach? This issue was recently considered by an Employment Tribunal in Scotland, which ruled that an employer’s decision to dismiss a long-serving employee for a one-off breach of its workplace smoking policy was fair.

In Smith v Michelin Tyre plc (Dundee Employment Tribunal 4/7/07), Mr Smith had been employed since 1994 at the company’s factory, manufacturing car tyres. Given its use of flammable products, the company operated a strict smoking policy prohibiting employees from smoking in non-authorised areas within the factory. The company’s disciplinary procedures made it clear that breach of the smoking policy could amount to gross misconduct, resulting in summary dismissal.

In view of the smoking ban which was implemented in Scotland in March 2006, the company amended its smoking policy to prohibit smoking anywhere inside the factory but continued to allow employees to smoke in authorised areas outside. The change was explained to employees by way of a company presentation and notices within the factory emphasised that contravention of the policy could result in summary dismissal. In October 2006, employees were again reminded of the importance of the policy and the fact that a breach could put the safety of the site at risk, after cigarette butts were found inside the factory.

In November 2006, Mr Smith was temporarily without work at the beginning of his shift due to difficulties with production. He decided to have a break and went to the staff locker room, opened the fire door and sat at the door smoking. His supervisor saw him and Mr Smith was immediately suspended from work. A disciplinary hearing was held, during which Mr Smith admitted smoking in breach of the policy and expressed remorse. He disclosed that he had been suffering from depression and had felt under pressure in his work and asked the disciplinary committee to take into account his long service. The company concluded that in view of his blatant breach of the smoking policy, Mr Smith should be summarily dismissed for gross misconduct. The company considered the mitigating factors put forward to be insufficient and concluded that as the employee was well enough to work, his depressive illness had no bearing on his actions. The employee’s appeal failed and he then brought a claim for unfair dismissal.

The Employment Tribunal concluded that the company had acted reasonably in dismissing the employee. It had for many years operated a strict smoking policy and had made it clear that smoking in non-authorised areas amounted to gross misconduct. The tribunal acknowledged that the company’s decision might appear harsh and that there were circumstances which many employers might have regarded as amounting to considerable mitigation. However, the tribunal could not say that the company’s actions fell outside the range of reasonable responses. The employee’s situation had to be weighed against the importance of the policy in preserving the company’s business, its property and the safety of its other staff.

This case illustrates that in some circumstances, a single instance of smoking can warrant dismissal. However, employers should proceed with some caution when disciplining employees due to smoking in the workplace. Firstly, employers must ensure they have a clear smoking policy in place. Secondly, it must be clearly explained to employees that smoking in a smoke-free place can amount to gross misconduct. And thirdly, the smoking policy and its consequences must have been adequately communicated and explained to employees. If employers are unable to satisfy any of these requirements, it is unlikely to be fair to dismiss an employee due to a single incidence of workplace smoking.


Read the other articles in this newsletter:

Third party pressure to dismiss
Manager selected for redundancy because of his age
Failure to adapt grievance procedure gives rise to constructive dismissal claim
Q&A – Constructive dismissal

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