Comments by Ray Johnson

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.