Law firms need to tread carefully when trying to stub out smoking in the workplace, a Yorkshire lawyer warned this week.

The call comes in the wake of the results of the Big Smoke debate organised by public health agencies around the country, which found strong support for a ban on workplace smoking.


John Howe, senior partner of three-partner Leeds firm John Howe & Co, said: ‘Smoking is a serious issue employers can no longer afford to ignore. For instance, there is now a consensus in the medical profession that second-hand smoke is harmful to health and can lead to heart disease and cancer in those subjected to prolonged exposure.


‘As workers spend much of their time in the workplace, it is here they are most vulnerable to such exposure. In the US, litigation cases have already been brought against employers by non-smoking staff in respect of exposure to second-hand smoke.’


Mr Howe said that employers are potentially in a no-win situation if they have historically allowed smoking in the workplace. They are potentially liable for the effects of passive smoking – whether leading to constructive dismissal or a liability claim if illness can be linked to it – while on the other hand, employees who say they need to smoke could have constructive dismissal claims if their terms and conditions are unilaterally changed to include no smoking in the workplace.


In 1997, City law firm Waltons & Morse was found liable for the constructive and unfair dismissal of an experienced secretary who claimed she was forced to leave because of others’ smoking.


The Employment Appeal Tribunal formulated an implied duty on employers to provide employees with a working environment which is reasonably suitable for the performance of their contractual duties.


As a result, Mr Howe suggests that a ‘sensible, well thought-out non-smoking policy’ is the only realistic way forward in the long term.


‘The best approach you can take is to behave responsibly and treat your workers equally. A good smoking policy will include some consultation with your employees. It comes down to drawing up a smoking policy which deals with problems of passive smoking while taking into account the feelings of all members of staff.’