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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 47907
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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We just took on our first employee as a receptionist / administrator.

Resolved Question:

We just took on our first employee as a receptionist / administrator. At the interview we asked if she was OK with no smoking on the premises - she replied that it was no problem, she hardly smoked and might just have one at lunchtime occasionally. We really didn't want a smoker, but she was the best candidate (just), so thought it would be OK.

One week in- our Reception smells of smoke, and she strongly smells of smoke, particularly (but not only) in the morning, after lunch, and after every errand (she seems to take every possible excuse to go on errands rather than to order stationery or other items online, which would likely be cheaper and quicker).

Her performance is otherwise fine. But, we regret hiring a smoker and if we could go back and go with our second-choice from interviews, we probably would.

In an ideal world, we’d sit down on Monday with her and say, “the smoking is a much bigger deal than we expected it to be. You’re clearly a heavier smoker than you lead us to believe. Are you able to change things, because if not - this isn’t going to work out”.

Here is my legal question: We don’t know how (legally) to go about having that conversation.

Morally, she was between jobs so we wouldn’t feel it was too awful to let her go so soon. If she insisted she could change, we’d consider it. But, if we need to start training someone else, we’re starting to wonder whether giving her a chance to ‘change’ is just wasting everyone’s time and energy.
Submitted: 3 years ago.
Category: Law
Expert:  Ben Jones replied 3 years ago.

Ben Jones : Hello, my name is XXXXX XXXXX it is my pleasure to assist you with your question today. So just to clarify what would you
Ben Jones : like to achieve in this situation?
Customer:

In an ideal world make our feelings known and have her decide for herself that the job is worth quitting or drastically reducing her smoking for.

Customer:

Can we give a kind of ultimatum, or is our only real option to terminate with 1 week notice and not tell her why?

Ben Jones :

OK, thank you, XXXXX XXXXX this with me - I will look into this for you, get my response ready and get back to you on here. No need to wait around and you will get an email when I have responded, thank you


Ben Jones :

Many thanks for your patience. Of course there is nothing stopping you from having an honest discussion with the employee in the hope that she reconsiders her actions and understands that her habit is unwelcome in the workplace and that she would change it to fit within the culture of your company and save her job. This is the most diplomatic approach to start with and depending on her commitment it could resolve the situation without the need for further intervention.


 


However, if that is not possible, and you believe this is an issue that means this person is not suitable to continue working there, you can actually consider terminating her employment. If she has been continuously employed at her place of work for less than 2 years then her employment rights will be quite limited. Most importantly, she will not be protected against unfair dismissal. This means that you can dismiss her for more or less any reason, and without following a fair procedure, as long as their decision is not based on discriminatory grounds (i.e. because of gender, race, religion, age, a disability, sexual orientation, etc.) or because she was trying to assert any of her statutory rights (e.g. requesting maternity leave, etc.). Smoking would not be covered by any of these so she won’t be able to challenge the dismissal.


 


If the dismissal had nothing to do with any of the above exceptions then she would not be able to challenge it and her only protection would be if she was not paid her contractual notice period, because unless she was dismissed for gross misconduct, she would be entitled to receive her contractual notice period. If she did not have a written contract in place she would be entitled to the minimum statutory notice period of 1 week. You would either have to allow her to work that notice period and pay her as normal, or pay her in lieu of notice.

Ben Jones :

Hello, I see you have accessed and read my answer to your query. Please let me know if this has answered your original question or if you need me to clarify anything else for you in relation to this?

Customer:

That's perfect, thanks a lot!

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