By Darren Clayton, Doyle Clayton


Stubbing out breaks

There was a time when arranging that next training seat during articles (that's a training contract to you, sonny) was very much like booking an airline seat. First, came the choice of exotic destination; sometimes came the question of class, and finally came that most difficult of questions, 'smoking or non-smoking'?



I appreciate that our younger brethren are usually amazed to hear that we somehow managed to practise law effectively without the aid of a computer as recently as the early 1990s.



How much more quaint must it seem therefore that there was a time when, in order to benefit from carrying the bags of a particular partner, many of us were forced to share a small room with partners in circumstances where so many of them were permanently veiled in a light industrial smog.



I recall well gaining a great deal of useful experience from one partner but of never being entirely sure what he looked like. I was satisfied though that he was in the room given the perpetual sound of striking matches and a cough that was less of a smoker's cough and more of a death rattle.



Over time, the office smokers were gradually relegated to that great leveller - the car park - as more and more offices voluntarily declared themselves smoke-free. Here the high and mighty mix freely with tea boys, and a new office culture has developed in which, in an effort to clear their lungs, non-smokers tacitly accept the fact that their smoking colleagues enjoy numerous free additional breaks during the day in order to get the necessary fix. In other offices, special little yellow rooms have been created for the comfort of the discerning.



What remains debatable then is the extent to which these breaks and perks have become, through course of conduct, contractual rights for those who enjoy them and, if so, what the impact will be of the new smoke-free premises regime which will come into effect in England on 1 July 2007 (and which is already in place in Scotland and Wales).



Much has already been written about the Health Act 2006 and companion instruments - the Smoke-Free (Premise and Enforcement) Regulations 2006 - so I will attempt to be brief. It is interesting, however, that much of the press coverage has related to the impact of legislation on pubs and clubs and that so little column space has been devoted to the impact in the workplace.



Essentially, from 1 July 2007 it will also become an offence in England to smoke or (for employers) to fail to prevent smoking in a smoke-free place. Such places include all 'enclosed' or 'substantially enclosed' places which are either open to the public or which are a workplace for more than one person (that is, your office) and will usually extend to work vehicles (though how anyone controls a car and a cigarette whilst dodging speed cameras is a mystery).



An 'enclosed place' is defined as one which has a ceiling or roof, and which (except for doors, windows and passageways) is wholly enclosed (either permanently or temporarily). This accordingly suggests that passageways, for example, need not be wholly enclosed to count. A 'substantially enclosed' space includes premises with a ceiling or roof where there is an opening in the walls, or an aggregate area of openings in the walls which is less than the prescribed area (that is, less than half of their perimeter consists of an opening).



Section 6 of the Health Act then sets out the obligation to erect no-smoking signs in such places and a system of fixed penalties and enforcement rules will be put in place to regulate the process.



The purpose of all this is, we are told by the government, to both protect the non-smoker from what are stated to be the proven ill-effects of passive smoking and frankly the smoker from themselves (presumably the legislation having been lobbied through Parliament by the nicotene patch people).



So where does this leave our office smokers? Almost certainly out in the cold, but the real question perhaps is when. What will happen in offices where employers have created dedicated smoking rooms or gradually allowed a certain number of 'fag-breaks' a day for those in need? Will those spaces or breaks now be banned?



One argument to consider is whether, contractually speaking, offices should continue such 'facilities'. Rarely will these 'rights' have been enshrined in handbooks and contracts but certainly employees may have been induced to join a company in the expectation of such breaks or may have remained after voluntary bans were put in place on the strength of promises that they would be allowed time to top-up. Could they not be implied on course of conduct grounds?



The first thing to note is that as a smoking room (or external shelter) will probably be an enclosed or substantially enclosed space in which one or more person will work, it certainly seems that such a facility can no longer be provided even if it is an express contractual entitlement. It could, of course, be argued that no one on a smoking break is actually working, but is it likely that such a view will be taken when smokers are in there during office time talking about the boss?



This leaves cigarette breaks. If there is an express contractual right to such a break, then provided the employer does not breach the non-smoking or other legislation, it seems fairly clear that such breaks can and should be allowed.



This will, of course, leave staff huddling in shop doorways unless a shelter can be devised which escapes the criteria above.



However, it is unlikely that many contracts contain such express agreement and if the right to such breaks is contractual at all (which is highly debatable), then the right is likely to be an implied one based on a continued acceptance of the practice. But any such 'agreement' from the employer will clearly have been made against a landscape where smokers were being 'deprived' of otherwise working in a smoking environment. In short, could it not be best expressed that any implied term was that 'for so long as you are giving up an otherwise legal right to smoke at your desk, you can have the extra breaks'? Surely that is what would have been said to give the term business efficacy?



Equally, after 1 July 2007, the environment will change and any consideration given by the smoker in return for replacement 'perks' will cease. Perhaps more importantly the activity they had been asked to give up has become unlawful.



In government guidance, an objective of the legislation was said to be the 'saving thousands of lives over the next decade by reducing exposure to hazardous second-hand smoke and the overall smoking rate'. Given that part of the rationale is to help people quit, any ambiguity in such matters is unlikely to be resolved in the smokers' favour.



It seems probable then that much will be left in the lap of employers to decide whether they will still allow breaks outside and whether they can devise a suitable shelter for their people. It also leaves me wishing, not for the first time, that I had already patented the designs and bought shares in companies specialising in patio heaters.



And so it is that the trainee solicitors of today are saved from the tyranny of the smoking partner.



Whether legislation should be put in place to save them from the partners themselves is another question altogether.