Smoking breaks in the spotlight

The thorny issue of whether or not workers are entitled to smoking breaks and how employers should treat the traditional "fag break" has been thrown into relief by the introduction of the smoking legislation at the beginning of July.

Under the legislation smoking is not permitted in "enclosed" or "substantially enclosed" spaces. Banished to the street or car park and with the government's current focus on encouraging people to give up the habit; smokers may feel defensive about their rights to smoking breaks at work. One possible argument might be that these breaks are part of a "working culture" and are therefore a contractual right.

Although this argument is unlikely to hold up if it were ever brought to tribunal, employers are advised to draw up smoking policies to clarify their position. James Tait, an associate in Shakespeare Putsman's employment team, said: "Some employers are asking whether they can dock pay for time lost because a member of staff continues to smoke (albeit outside). The answer is no, unless a very carefully worded deductions clause appears in the employment contract.

"However a more sensible way of handling the situation would be to clearly set out the company's position on smoking in order to manage the expectations of staff. This in turn should lead to smoother employee relations and help to clear up the fog surrounding the smoking issue."