Smoking

Anonymous

So the dutiful employee, who arrives early for work, was smoking in his own time outside your building and you think that deserves a charge of gross misconduct - presumably leading to dismissal?

An employment tribunal will not support your view and cost you dearly!

Anonymous

I feel that your action of gross misconduct in this case is totally irresponsible and will not stand up in a tribunal, unless your policy states that people who have already clocked on for work are not allowed to smoke at all during the working day, especially in the car park.

It could also make the management team of your Company look petty in the eyes of your other employees.

Anonymous

I'm not aware of what your company's exact policies are on smoking.

You have already said they had already started work so if there is no smoking during 'work time' then this person has broken a rule.

If they were on a break then it may be more difficult, especially as they had been considerate and taken the activity outside.

Rather than a charge of Gross Misconduct, maybe just a reminder of the company policies and a message of "Could you smoke during lunchtime?" might suffice.

Would it not be simpler, however, to look at, and update the policy? Maybe have a smoking area or shelter outside away from the building where smokers can go in a break. If the company is strict about this policy, and points about smokers' breaks meaning they work less than other employees are raised, maybe allow them a 10 minute 'Smoking break' which means the time has to be made up at the end of the day.

Flexitime with a 'core' set of hours that must be worked per week could help as well.

On top of that, maybe the HR department could also proactively advertise help and advice for smokers who want to give up and encourage giving up rather than severly repremanding them?

Anonymous

In "The Ragged Trousered Philanthropist" by Robert Tressell, written in 1908, there is an account of a worker who is summarily dismissed when he was caught smoking his pipe on a building site. That incident was an example of late Victorian/Edwardian management style. Fortunately, we have moved on since those days.

Anonymous

I see little or no point in having Company Policies in place if when situations such as this arise, the expectation is for relaxation of those very policies.

I consider that a form of discipline be employed, whether it be written or verbal warning determined by the severity of the breach.

Anonymous

I think you need to put yourself in the employee's shoes & look at this from a defensive point of view. This way you can assess which side has a stronger case.

If matters escalated to tribunal stage you would need to ensure that you have solid couter-arguments to any points raised as a defence of the misdemeanour.

The "offence" took place outside of normal working hours even though the employee had started work (a point which would possibly go in his/her favour and be seen as conscientiousness toward the company)

Had their been any previous warnings to this individual? A tribunal would possibly envisage a reasonable course of action to be:

a) talk to the member of staff, outlining your expectations of them.(This, presumably had already taken place as a matter of course)

b) issue a verbal warning.

c) issue a written warning.

d) issue final written warning/dismissal.

A defence team would certainly look into whether any of the above steps had been skipped and whether the gravity of the matter warranted a leap-frog past them to reach a conclusion of gross misconduct.

Without knowing the environment in which you operate and the seriousness attached to this particular rule therein it is difficult to assess this issue fully but I believe you may be seen as draconian in your actions if you pursue it at such a level.

Also you should consider what would warrant this to be deemed an unsafe practice at work? - In a flammable materials/chemical/etc. storage area then there would be no question. But an open car park would be looked at differently. (I am making some presumptions on account of my ignorance of the exact environment but these are some considerations you may wish to bear in mind)

I know this may not be the answer you are seeking but the repurcussions of treating staff over-harshly can be quite severe for a company in this day and age. You need to ensure that you can justify your actions and are 100% confident that you have acted apropriately.

Ray Johnson
Member - 1 post

You're asking two questions here really Simon: (1) Does this worker's behaviour constitute 'unsafe practice'?; and (2) If so, does it also warrant action for gross misconduct?

There may also be other factors, eg storage of explosive or inflammable materials nearby enough to present a serious risk if smoking is practiced in the area.

Whilst some people might consider the act of smoking itself to be 'unsafe practice', that view is not supported in law (at least not yet). So on what other grounds does the notion of an unsafe practice arise in this worker's case?

Your decision will also need to take into consideration whether your company's no-smoking policy extends to this car park area, and not just the interior of your buildings.

If there is no properly objective case for considering this person to have carried out 'an unsafe practice', and the company's no-smoking policy does not cover this external area but the insides of its property only, then I suggest you have no case for either complaint, particularly as the worker was smoking on their own time.

Any potential tribunal will - as indicated above - expect you to have considered providing a safe environment for smokers within the company for rest periods, and to have gone through the various stages of a reasonable disciplinary procedure.

All other things being even, a 'gross misconduct' charge in this scenario seems doomed, even - dare I say it - ever so slightly over-the-top. You might also be risking a charge against the company of harrassment, and even - if taken to further extremes - eventually one of constructive dismissal.

Robyn McIlroy
Member - 2 posts

Based upon the information provided in your question I consider that there is a high likelihood that dismissal of this employee in the circumstances described could be regarded as unfair. To give a definitive view however I would need to examine the smoking policy to ascertain exactly in what way it is alleged the employee breached the policy (given that he seems to have been outside the premises when smoking and usually smoking policies permit smoking outside but not inside company premises).

My concern would be that dismissal is an overly harsh penalty for the disciplinary offence. Again this might depend upon exactly what the policy said, whether there were any other relevant factors whether he had previously been disciplined and given warnings for smoking etc. if however there were no prior occasions, even if his actions amount to a technical breach of the smoking policy, I would be concerned that dismissal would be an overly harsh sanction. If the employee has over 1 year qualifying period of employment he would have the right to bring a complaint of unfair dismissal against the company. An Employment Tribunal would examine all the facts and circumstances and would consider whether the dismissal was within the band of reasonable responses of an employer. If for example this is the first breach of the policy, if there was no immediate danger to health & safety, if the employee had a good disciplinary record then the dismissal is much more likely to be considered unfair.

If the employee does not have the qualifying period of employment he may nevertheless be entitled to take a claim of wrongful dismissal if he argues that his actions did not amount to gross misconduct and that if the company was entitled to dismiss him it was not entitled to do so without notice.