Anonymous
Anonymous asked in Politics & GovernmentLaw & Ethics · 1 decade ago

As an employer, am I within my rights to discriminate against smokers?

Hi, I own a small business, and I employ 40 staff, 3 of whom smoke. When I know an employee smokes, generally they don't get past probation. The thing is, they usually have a 1hr lunch break, which I encourage. But smokers then take about an hr a day on "*** breaks" which I hate. The 3 who do smoke, only have about 10 mins of breaks for smoking a day, they don't smoke much

Is it illegal to discrimate against people who smoke?

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  • 1 decade ago
    Favourite answer

    In the majority of places where I have worked.. the allocated break times were by law.. 2- 15 min breaks and a lunch break of either 1/2 hr or 1 hour. Thus, I am not too clear on you "encouraging" the one hour lunch. And (in the US) I believe the other two breaks are pretty much mandated as well. If anyone took beyond what they were entitled to.. I would be concerned, no matter what they did with it. I HAVE personally seen where some persons would choose to forgo their legitimate break times, thus making those who took their valid break times to appear "bad". The effect was manipulative.. that they were "better" employees for not needing breaks.

    I have been around long enough that smoking was not always prohibited in offices.. so, if I smoked during a break.. I still could do so at my desk AND answer phones, if need be. The requirement now for a smoker to leave the office (building, so forth) forces a person out of the office. When smoking was not an issue.. I was fully aware of NON smokers who would take extended breaks, away from their desk, and neglect their jobs. SMOKING was not the cause.. they abused their breaks either way.

    I have also witnessed persons being given credit for "see how well they do their job, and are not smokers".. when it is LATER learned that the person who was given credit/ praise for good work.. WAS in fact a smoker, but did so in such a discreet way that the employer was not aware of it. Pure hypocrisy.

    I am saying that it is not right to make the assumption that all smokers abuse their valid break times, or that all smokers are "less productive" than non smokers. The political climate today against smokers, is increasingly based not in fact, but in personal prejudices.

    Use logic to think past prejudices, please. It is completely possible that two persons are completely equally qualified to do a job, without abusing their rights to take breaks. Just because you see one person at their desk, not smoking.. is not a guarantee that they are not sitting there, reading a magazine when they are supposed to be working.

    Making a VALID and unbiased comparison is very hard, today, when the anti smoking issue seems to have turned into a witch hunt, supported by questionable research. Are you discriminating against persons out of personal dislike, or out of valid reasons?

    I think that if a "scientist" came up with a biased "study" (contradictory in its own terms).. that says persons with red hair are evil.. sooner or later, persons with red hair would be stigmatized.

    And yes (to answer you in brief), it HAS BECOME both legal and acceptable to discriminate against smokers.

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  • 1 decade ago

    Presuming you are in the UK then there is no current legislation which means you can't discriminate against smokers. Currently you cannot discriminate against anyone on the basis of their sex, race, (colour, nationality, ethnic or national origins), marital status, religion, sexual orientation, age or because they have undergone gender reassignment. Smoking is not a disability and is a personal choice.

    I would not advise you to discriminate against anyone as they may fall into one of the other catagories. Plus, anyone who has over 1 years service is a protected employee and could pursue a case for unfair dismissal.

    Smokers have no legal entitlement to smoking breaks. As you have been providing these you would need to implement a change to their terms of employment. You would do this by consulting with them and then giving notice of when the change will take place. Alternatively you could intorduce a system where they have to work longer hours to accomodate their breaks - this is what most city councils currently do. Again you would need to consult with the affected employees as this would be a change to their terms and conditions of employment.

    Source(s): I'm an employment law advisor.
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  • Anonymous
    1 decade ago

    It is illegal to discriminate directly against smokers.

    I do find some smokers insist on taking extra breaks during the working day which can cause ill feeling between the smoking and nonsmoking staff.

    When you employ someone who is a smoker in your company inform them the time allocated to your staff for refreshment (this is a legal requirement by all employers). If this is not acceptable by any person seeking employment in your Company you have the right not to employ that individual smoker or a non smoker.

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  • 1 decade ago

    I don't believe you can discriminate against them when it comes to hiring. But you can probably let them know that they need to do all their smoking on their 1 hour break. As far as I am aware there there is no law that says smokers must be given more breaks than all the other staff. That just wouldn't be fair.

    Smoking is a lifestyle choice - it's not essential to living. So why should the non-smoking staff be made to feel like they're having to work harder to cover for those who are outside smoking three times a day? They shouldn't. To be totally fair you would need to be willing to give them all an extra half an hour break each day too.

    Of course you could always give your employees the option of having 3 shorter breaks that all add up to one hour - or one big lunch break. But you would probably need to make sure that everybody is given that choice - including the non-smokers. :-)

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  • Anonymous
    1 decade ago

    smokers have not, and will probably never be, recognized as a "protected class" and are therefor not subject to the anti-discrimination laws. the city of Austin,Texas has banned smoking in most public places, including businesses such as bars and restaurants. no challenges to the law have thus far been sustained. i don't understand how your smokers can take an hr a day for "*** breaks", if your business practice only allows for 10 minutes of breaks for smoking a day. and does this mean the non-smokers are deprived of 10 minutes of break time a day because they don't smoke? why don't you check with the department of labor about the amount of time an employee is entitled to for breaks in addition to lunch time each day. set the amount of break time for ALL employees in accordance to relevant laws and then enforce it exactly the same for everyone, regardless of race, creed, color, or smoking preference? i think the best thing an employer can do is have clear written rules that apply to all employees in all circumstances and all times. (any exceptions you may want to make will be looked at for discriminatory intent, so be careful you have a legally justifiable reason whenever you deviate from the policy. ) and it is best to enforce all work policies for all employees. as much as you may want to make exceptions for a favorite, you will probably suffer the consequences for doing so.

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  • Anonymous
    1 decade ago

    It is illegal to discriminate against smokers, but if staff smell of smoke, it is just as anti-social as if they have BO so you can deal with that in the same way. They are also not entitled to extra breaks because they smoke, so make sure you monitor time taken for breaks. You can make sure staff don't smoke anywhere on your property, it's against the law anyhow to smoke in a work building or in a work vehicle. If you run a shop you can also insist that they don't smoke in front of your premises as it is terrible for the image of your work. So without discriminating against them you can certainly make smoking not an easy thing to do. Make sure they are well aware of your policies before employing anyone.

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  • Wendy
    Lv 4
    4 years ago

    If you make everything a protected trait that can't be discriminated against, then it will paralyze decision-making. An employer's job is to discriminate good employees from bad ones, and to reward the good ones and get rid of the bad ones. It's not hard to envision problems if you don't let them do that. Personally, I wouldn't want to work for someone who wanted to discriminate against me, even if the law forbade him to. Wouldn't we all rather work with people who want us to be there? In theory, if an employer fires competent staff just for some whim, his business will end up with less competent people, and the competent people will go to a competitor who will then proceed to drive him out of business. That's the free market in action, baby.

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  • Anonymous
    1 decade ago

    I do, and I tell smokers you cannot work here unless you plan to quit right now, and even if you do, if you live with a smoker, thus stinking of smoke every day, forget it, no job here.

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  • Anonymous
    1 decade ago

    You are under no obligation to allow smokers time off for their habit and it is not discrimination if you ban breaks. When taking on new staff, you have to select the most suitable candidate for the job. Smoking is not (yet) defined as a disability, religion or sexual orientation so you can count it a minus when weighing up a candidate's suitability.

    PS This is the position in the UK. I see the yanks haven't gone to bed yet.

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  • 1 decade ago

    I work full time and i Smoke however i dont have a *** break i only smoke at lunch times and before and after work. It isnt illegal to discriminate smokers though. I just asked my boss and he is a solicitor.

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