Smoking police/policy - what is the employer allowed to do?

Two new rulings clarify the scope of the employer's right to lay down smoking policies and impose sanctions in connection with violation of these policies.

The employer's managerial right is quite fundamental within employment law. This right determines that the employer is entitled to direct and distribute work and lay down rules governing the employees' activities and conduct at the workplace. This implies that the employer may lay down a smoking policy restricting the employees' access to smoke during working hours and while at the workplace.

Referring to the managerial right, there are, however, limits as to how far-reaching these restrictions may be. It is a general requirement that the policy must be based on legitimate operational considerations. A smoking policy will often be based on the company's wish to appear as a healthy and environmentally friendly company, which does not expose its employees, customers, etc. to passive smoking. In practice, this consideration has been considered a legitimate purpose, but it must be balanced against the employees' right to privacy.

The question is then how far the managerial right may be extended in relation to smoking policies. Two new rulings bring us closer to an answer:

UNFAIR TO PROHIBIT SMOKING AT THE ENTIRE CADASTRAL PLOT OF COPENHAGEN AIRPORT

In a new industrial arbitration award, the question to be clarified was whether Copenhagen Airport could prohibit smoking at the entire cadastral plot of 12 million m2 covering, for instance, airport buildings, parking spaces, bus stops and parts of public access roads and traffic to and from trains/metro.

In an attempt to simplify the airport's smoking policy, it was decided to change the policy with the result that the employees were no longer allowed to smoke at the airport's cadastral plot during breaks or when going to/from work, irrespective of whether the employees wore visible uniforms or not.

The umpire of the arbitration tribunal stated in his award that, in general, a smoking ban may be extended to cover the working place's aggregate area when this area is in immediate connection with the workplace, as the outside world, including customers, may easily consider smokers to be the company's employees.

However, the airport's aggregate area is unusually large - 12 million m2 - and is frequented by a substantial number of persons, including passengers and employees from other companies at the airport.

The umpire therefore found that, to the extent the employees could be identified as the airport's employees due to the uniform or otherwise, a smoking ban could be justified by a consideration for the company's reputation and was consequently within the company's managerial right.

Contrarily, the umpire found that the airport's smoking ban at the entire cadastral plot covering all employees, who went to and from the work place in their spare time, was too far-reaching and therefore not within the managerial right.

SUMMARY DISMISSAL OF EMPLOYEE VIOLATING THE SMOKING POLICY WAS JUSTIFIED

On 15 January 2016, the Court of Odense decided on the question whether violation of a company's smoking policy could justify summary dismissal of an employee with more than 30 years' seniority.

The company's smoking policy stipulated that the employees were only allowed to smoke in a specific shed, and that violation of the policy would result in summary dismissal. The employee in question had previously received an oral warning for having violated the policy, and as the employee was once again caught smoking outside the permitted area, he was dismissed summarily.

The restrictive policy was justified by the fact that the company, which manufactured foods, could risk loosing its certifications and customers if it was ascertained during an inspection that the smoking policy was not observed.

The court found that the policy was clear and had been communicated to the employees, and that enforcement of the policy was decisive to the company. As the employee should have been aware of the importance of observing the policy, and as he had previously been warned, the court found that the summary dismissal was justified.

COMMENTS

In line with social development according to which the right to smoke has been gradually limited in a number of areas, the employers' right to lay down far-reaching smoking policies is also widely accepted.

However, a smoking policy may still give rise to problems, in particular if it includes a smoking ban that covers the employees' way to and from the workplace. This policy would interfere with the employees' privacy and, in general, the employer cannot issue rules regulating the employees' privacy. This was concluded by the umpire in the case concerning Copenhagen Airport, where the airport was not entitled to ban smoking on the entire cadastral plot outside working hours.

The ruling of the Court of Odense shows that smoking policies are to be taken seriously, and that the employer does not have to accept violation of the policy. It is still unclear whether the ruling will be appealed against.

Please note, that the content of the above cannot be considered as or replace actual legal advice.

contacts

Marianne Lage

Partner

Maria Schmiegelow

Attorney