Buddy says: If your employee has over one year's service then she has the right not to be unfairly dismissed. If you wish to dismiss her for smoking in the toilets, you must show that one of six potentially fair reasons for the dismissal applies. One potentially fair reason for dismissal is an employee's misconduct. The employee should be aware that smoking in the toilets constitutes gross misconduct and will be dealt with under the company’s disciplinary procedure. This will assist you in establishing that it was reasonable in the circumstances for you to dismiss her.

In the absence of clear rules relating to smoking, including the sanctions for breaking the rules, it could be difficult to demonstrate that the employee knew smoking on company premises was banned.  This could affect the disciplinary options available to you.

Employer information:  Smoking in enclosed or substantially enclosed public places and workplaces (including work vehicles) was banned on 1 July 2007, under the Health Act 2006. In response to this, many employers implemented a total smoking ban. There are now three potential criminal offences relating to smoking in enclosed places.  These are:

• Smoking in a smoke–free place
• A failure to prevent smoking in a smoke-free place
• A failure to display no-smoking signs which meet a certain standard.

Consequently, any employer who is found guilty of failing to prevent smoking in smoke-free premises/ vehicles will be liable to a fine of up to £2,500. Also any individual successfully prosecuted in such circumstances is liable to a fine of up to £200.

In a recent tribunal case, a dismissal for gross misconduct which involved a one-off breach of a no-smoking policy was upheld.  This case illustrates the importance of having a policy on smoking and communicating it to all staff. The employee worked at a factory that used highly flammable materials and the employer had a long standing policy of no-smoking in the workplace. The factory's disciplinary procedure stated that smoking in unauthorised areas would amount to gross misconduct, which could lead to immediate disciplinary action and in serious cases, dismissal without notice. The tribunal held that the employee's personal circumstances (who was addicted to smoking and suffering from depression), had to be weighed against the importance of the employers no-smoking policy in preserving its business, property and lives of other staff. In response to the introduction of the smoking ban, the company had reviewed and extended its smoking policy. The changes to the policy were communicated to all staff and notices were pinned on notice boards. After cigarette butts were found on the premises some time later, the company reiterated the policy by publishing a further notice to staff. In coming to its decision, the tribunal noted that for some years the company had in place a strict policy in relation to smoking, such that smoking in unauthorised areas amounted to gross misconduct.

Therefore, if you haven't already done so, you should revise and possibly extend your smoking policy, notifying employees of any changes.  Your policy should make it clear where (if at all) smoking is permitted, what staff are expected to do if they see another employee breaking the policy rules and finally, what the sanctions for breaching the policy are.  A dismissal for gross misconduct in the absence of a clear no-smoking policy, could lead to a successful unfair dismissal claim by an employee. Failure to state within the policy that a breach could lead to summary dismissal for gross misconduct, would leave you little choice but to impose a written warning instead.