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Ben Jones
Ben Jones, UK Lawyer
Category: Law
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Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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if you are a smoker, can you be complained bout that residual

Customer Question

if you are a smoker, can you be complained bout that residual smel of smoke is causing staff to become poorly?
Submitted: 1 year ago.
Category: Law
Expert:  Ben Jones replied 1 year ago.
Ben Jones : Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long have you worked there for and is the employer taking any formal action?
JACUSTOMER-zrogz89y- :

I have worked for my particular boss for over 12 years. in the present offices for over 8 years. At the "meeting" he said there were alternatives: (1) - I stop smoking when I know I am working - I am part time flexible - (2)I could move to a "room of my own" - (3) he could move the people who complained!.

JACUSTOMER-zrogz89y- :

are you there

JACUSTOMER-zrogz89y- :

does not this come under human rights as well.

JACUSTOMER-zrogz89y- :

how long do i wait please - ?

Ben Jones :

Apologies for not getting back to you sooner, I experienced some temporary connection issues and could not get back on the site until now. All appears to be resolved now so I can continue dealing with your query.

The Health and Safety at Work Act 1974 and related statutory instruments impose a general duty on employers to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all their employees. So if there are factors that affect employees’ health the employer should try and deal with these and minimise or remove them. Obviously there is a ban on smoking in the workplace but the issue is that there is a residual effect of this on your colleagues and that in itself is seen to affect their health and wellbeing. As such the employer can take step to deal with this and the proposed solutions are reasonable and what one would expect in the circumstances.

Smoking is not covered by human rights legislation – you have the right to smoke if you wanted to but you must ensure that does not break any laws or have any adverse effects on others, which it appears to be the case here. So whilst you can smoke in your free time and in places where it is allowed, you must also be considerate about how the lingering odour can affect others when you return to a place where smoking is not permitted.

As the employer has a duty to try and resolve this it is not a matter of if they can but how and when. So it is for you and the employer to discuss this and find the most suitable solution for all, otherwise the employer could be forced to make a decision themselves and that may not be the one that is necessarily best for you.

I hope this clarifies your position? If you could please quickly let me know that would be great, as it is important for us to keep track of customer satisfaction. Thank you


JACUSTOMER-zrogz89y- :

I only work there 2 or 3 days a week it is a large open plan office - air conditioned. at the meeting with my boss when i ponted out - to which he agreed - i was probably one of the smartest people ther - fresh clothes each day i am there etc - the office is in a large city - pollution everywhere how can i be the one being accused of people coughing?

Ben Jones :

this would be your word against the other people - they may think it's you, and you disagree - you can't prove that, but the employer will have to take steps to try and resolve this and someone will have to compromise to an extent so it is why it is in the best interest of all if you all discuss this together to try and find an amicable resolution

Ben Jones :

Can I clarify anything else for you please?

Ben Jones :

Could you please let me know if this has answered your original question or if you need me to clarify anything else in relation to this? It is important for us to know either way so we can track customer satisfaction or identify whether I need to help you further? Thanks

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