HR Expert: Smoking Breaks
A new member of staff at my company is complaining about not getting extra smoking breaks. What are the rules around additional cigarette breaks?

Smoking breaks can be a divisive issue in the workplace often causing friction between the company and both smoking and non-smoking employees. Whilst it is a common belief that employees are entitled to additional smoking breaks, there is no law to support this.

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Under British law, your client is required to provide one uninterrupted break of at least 20 minutes to adult workers who are working for longer than 6 hours a day. This break is to allow the employee time to rest away from their workstation. There is no obligation to pay workers for their breaks so entitlement to pay is dependent on the terms of the employment contract.

If during this minimum 20 minute period, employees wish to smoke then they may do so, however, this must comply with your client’s smoking policies. Some companies have a complete smoking ban on the entire premises to prevent employees smoking directly outside the building because this practice is often credited with causing litter or portraying an undesirable company image.  Alternatively, if smoking is not completely banned on site, your client may wish to provide a smoking shelter to accommodate smokers, however, they are not legally required to do this.

Changing your current rules on smoking breaks – removing additional breaks, for example – may cause friction with smokers because you are essentially changing their terms and conditions of employment. Even if you have never officially covered smoking breaks in your policies and procedures, a sudden withdrawal may still qualify as a change to an implied term of employment if you were aware that it happened but turned a blind eye. If you have allowed the practice for a significant period of time and then decide to forbid it, you should inform all employees that you are drawing a line in the sand and that, from a chosen date, no more additional breaks are permitted.

In many cases, additional smoking breaks causes resentment towards smokers from their non-smoking colleagues who do not take extra breaks.  Where these instances occur, it may be difficult to justify the extra breaks where the result is that smokers are essentially being paid the same to work fewer hours. Requiring smokers to make up the time spent smoking may be a resolution. Another option would be to allow non-smokers informal break periods of a similar length.

It is important that any practical decision made by your client is based on ensuring fairness and equality between smokers and non-smokers. This should be supported with clear policies that are in line with the relevant legal requirements.

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