Is there a legal right to smoking breaks?
Official statistics
According to the most recent government data, 15.5% of those aged 18 and over in England currently smoke tobacco-based cigarettes. Although the number of smokers has fallen in recent years, this still represents approximately seven million adults, and many more across the whole of the UK.
In addition, there’s also now an estimated 2.4 million e-cigarette users.
Smoking breaks
One of our subscribers has recently contacted us with a query regarding smoking breaks. They have an employee who claims that they are entitled to have up to 20 minutes per day in which they can smoke. According to them, this is “all set out in the working time rules” . Our subscriber wants to know if this is correct and, if not, where they stand legally.
The legal position
It’s likely that the employee is referring to their rights under the Working Time Regulations 1998 (WTR). These state that all workers are legally entitled to an in-work rest break once they have worked for six consecutive hours. That break must be for at least 20 minutes and the time cannot be carved up, e.g. into two ten-minute or four five-minute breaks across the working day.
Tip. If an employee doesn’t work for six (or more) hours, they have no statutory right to a 20 minute in-work rest break.
The employee’s time
The WTR also make it clear that an in-work rest break is the employee’s own time - in other words, the employer has no claim on that time and they can’t ask the employee to do any work during it. However, whilst an in-work rest break is classed as the employee’s private time, it doesn’t mean that they can do anything they like during it.
Tip. You can set rules if they are there to protect your business and/or employees. This includes enforcing current no smoking legislation.
No smoking rules
Therefore, you can insist that your employees don’t smoke anywhere on your premises, including outside areas and any staff car park. Whilst e-cigarettes aren’t caught by the no smoking legislation, it’s recommended that you extend exactly the same rules to these devices, primarily as it will avoid any confusion. You can set your rules out in a clear no smoking policy (see The next step ).
Tip. There are many advisors who state that employers should be flexible over cigarette breaks in order to maintain harmonious relations. This is dangerous advice as recent case law says that an employee’s WTR rights cannot be altered.
Risk. Even if you mutually agreed something different in respect of in-work rest breaks with the employee, they would still have a potential claim against you for breach of their WTR rights.
For a free no smoking policy, visit http://tipsandadvice-business.co.uk/download (CD 19.15.06).
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