Smokers are finding they are being discriminated against on many
levels. They are banned by law from lighting up in the workplace,
in pubs, at bus stops, on beaches, in taxis, in many publicly
shared spaces and possibly even in their back garden or on their
balconies if their smoke drifts into a neighbour's home.
Now increasingly jobseekers who happen to be smokers are being
confronted with advertisements that specify only non-smokers need
The jobs range from personal trainers to disability workers,
office workers and receptionists, hospitality workers and hospital
It's a controversial topic and one where the law seems to
have a bet each way. While the law bans smoking in many areas, the
law also says people should not be discriminated against.
Smokers support groups argue it is a legal activity. Smokers
generally accept their smoke can injure other people and they
usually obey the law by leaving a building so their smoke
doesn't reach other people. Smokers know tobacco is bad for
them but argue it is their choice to drag the lethal cocktail into
their lungs. If smokers are to be condemned for risking their
health, why not people who eat fatty food, drink too much, go
sky-diving or play rugby?
Anti-smoking groups argue employers, especially hospitals and
health organisations, have the right not to employ smokers.
It's a productivity issue as the habit requires them to take
Some argue the smell left on smokers puts off non-smokers in
their staff and clients they deal with.
Some employers see smokers as a bad investment for their time
and expense in training them as their health is likely to suffer in
the years ahead.
The law is clear – sort of. Job advertisements must
not discriminate. The law says discrimination occurs when someone
is treated unfairly because they belong to a particular group of
people or have a particular characteristic. Listed by the
Anti-Discrimination Board of NSW as against the law are
discrimination on the grounds of sex, race, age, religion, marital
or domestic status, sexual orientation, pregnancy, disability,
transexuality, who you are related to or associate with and
responsibility as a carer.
Nowhere does it list smoking as grounds for claiming
discrimination. So legally the situation is unclear. "It is
discriminatory, but not unlawful" said the head of the
Queensland Anti-Discrimination Board. It would be a very
interesting test case.
Legal advice to employers would be to establish the need not to
smoke is an inherent requirement of the job they are advertising
before they say "Smokers need not apply".
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).