UK: Passive Smoking: Claims From Employees Could Mean Costs For Employers

By Emma Pioli and Sameera Anwar

The leisure industry has been warned to gear up for a wave of lawsuits if they do not address the issue of staff and customers smoking in the workplace. This warning comes following the recently reported £50,000 out of court settlement which Michael Dunn, a casino worker in central London, reached with his employer following his claim that he had developed asthma due to passive smoking at work.

Now is a good time to take a look at the exposure to liability from employee claims if employers fail to take action on the issue of smoking in the work place.

The issue of common law liability for damage to health caused by passive smoking in the workplace has not yet been tested in the UK courts. But when you consider how much is known about the dangers of passive smoking, it is likely that the common law duty of an employer to protect an employee’s health at work would extend to protecting the employee from the ill effects of passive smoking in the workplace.

This means that an employee who could show that he had developed an illness as a result of inhaling other people’s smoke in his workplace would potentially have a right to make a claim against his employer in the civil courts for damages.

The £50,000 settlement in the Michael Dunn case highlights the need to think about this issue now. "Me too" claims could follow. The industry needs to consider measures that will show that the issue is being taking seriously. These are likely to include ensuring there is a suitable ventilation system in place in the workplace, implementing a workplace smoking policy and ensuring that there are clear boundaries between smoking and non-smoking areas.

Employers who don’t address the issue of smoking in the workplace also leave themselves open to claims in the employment tribunal for constructive unfair dismissal from non-smoking employees who resign as a result.

Unlike a claim for damages for illnesses caused by the effects of smoking, employees claiming unfair dismissal would only need to show that their employer had failed to provide and monitor a reasonably suitable working environment, when it was reasonably practicable to make the changes needed. In practice, unless the UK takes extreme measures like those adapted in California and New York where smoking is increasingly banned in places of public entertainment, this is highly unlikely to include a smoking ban. However, respecting the rights of (say) waiting staff not to work in the smoking area of a pub restaurant may be in order.

The problem with a constructive dismissal claim for employers is that, unlike a civil claim for negligence (where employees would need to show that they had actually suffered an illness from their exposure to smoke), employees claiming unfair dismissal would only need to show that they did not find the working environment reasonably suitable and this led directly to their resignation.

Considering the fact that compensation for unfair dismissal awards could reach £50,000 in the employment tribunal, employers, even in workplaces where employees are traditionally exposed to smoke (like pubs and clubs), are well advised to enter into an active consultation with their employees to discuss measures which could be implemented to accommodate non-smoking employees. This would also include encouraging non-smoking employees to come up with solutions. Often, employers will find that a simple solution like banning smoking from bars and other service points and enabling non-smoking employees to avoid waiting at smoking tables will be enough to keep their non-smoking employees happy.