The issue of workplace smoking took another twist after Tower Hamlets Council announced that employees who smoke will have to make up the time they waste on cigarette breaks.

Smokers at the London council will be made to work for up to half an hour longer than their non-smoking colleagues each day. This follows recent research which showed that smokers spend more than three working weeks a year on cigarette breaks. The policy will apply to all 11,500 employees. Council officials claim that, as well as evening out working hours, the policy will discourage smoking and make for a healthier working environment.

Michael Ryley Head of Employment Law at Masons Solicitors commented that such a policy should not be introduced lightly: "This demonstrates the need for sensitivity when handling smoking issues. Employers and colleagues are understandably aggrieved at smokers taking additional time off to smoke. However, they are generally doing so only because their employer has stopped them smoking at their workstation. Such changes in practice must be introduced sensitively and after consultation to avoid giving rise to constructive dismissal claims."

The policy comes into force at the Council on 1 October and creates a precedent for other employers worried about the problem of smoking in the workplace. The HSE’s consultation on smoking in the workplace will come to an end in the next few weeks (see below) and should provide much needed guidance on how employers should approach the problem.

Workplace smoking: Rules one step closer

The Health and Safety Executive (HSE) confirmed to www.workplacelaw.net that the consultation on the draft Approved Code of Practice (ACoP) on Workplace Smoking is now nearly complete. A paper is expected to go to the Health and Safety Commission "in the next three to four weeks", containing proposals to issue a final ACoP before the end of the year.

Whilst not strictly speaking a piece of legislation, an ACoP is nevertheless regarded as official guidance. Adherence to its guidelines and recommendations would provide employers with a strong case in the event of a disagreement with their employees. An ACoP on workplace smoking would be particularly useful, as the HSE estimates that some 20% of employers still have no policy on smoking at work at all, and that 3 million workers are working in (avoidable) smoky conditions.

Until the ACoP is published, the existing HSE's current guidance for employers remains their booklet Passive Smoking at Work, IND(G)63(L), which was last revised in 1992. It explains to employers what they should do to comply with health, safety and welfare law as it applies to passive smoking. It advises that:

- all employers should have policies on the issue;
- they should give priority to the needs of non-smoking employees; and
- they should take special care for people who have a health condition that may be made worse by tobacco smoke.