Hello, my name is***** am a qualified lawyer and I will be assisting you with your question today.
Please can you provide some information so that I can advise?
Will they be carrying out an investigation? Also, how long have you worked there?
OK, thank you for your response. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your question to the back of the queue and you may experience unnecessary delays. Thank you.
Thanks for your patience. To be able to dismiss you immediately the employer has to show that there was an offence amounting to gross misconduct. As you have more than 2 years’ service you are protected against unfair dismissal so the employer will have to show that there was a fair reason for dismissal and also that they had followed a fair procedure.
What makes smoking a gross misconduct offence will depend on various factors. For example, was there a clearly communicated policy which said that smoking is prohibited in no-smoking areas and that doing so would amount to gross misconduct? Would smoking where you did expose others to risk or affect the image of the company, such as if you seen by customer, suppliers, clients, etc?
There has been case law which has ruled that smoking in non designated areas, even if it was a one off offence, can amount to a fair dismissal. You can read about this here:
It does not automatically mean it can amount to dismissal but if there was a clear policy which said that breach of the smoking rules can amount to dismissal then it can happen. On the other hand if there was no policy in place which designated the non smoking areas the dismissal could be deemed harsh.
This is your basic legal position. I have more detailed advice for you in terms of the options you have on taking he matter further if you are dismissed, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you
so you say that "i knew we employees were not suppose to smoke there."?
Had they seen you do it before?
The factors which will help you are that this was not a specific designated no smoking zone, others have used it for smoking and that no one has been reprimanded before. You cannot avoid a dismissal if the employer is adamant that is the way they want to go down but you can challenge it and as mentioned I can discuss the options you have on doing so.
an employer would not be expected to go through every possible site and identify it as a non-smoking zone. they can issue a blanket prohibition on non smoking on or around work premises. However the fact that many others were smoking there for some time and it was not challenged by anyone would give you some grounds to challenge it
I have covered all the possible defences you can use but as mentioned none will guarantee you avoid dismissal - if the employer wants to dismiss they will, so the issue then becomes how you challenge this further, so I can then discuss this with you as well
Ok good luck! If your original question has been answered I would be grateful if you could please quickly rate my answer by selecting 3, 4 or 5 starts at the top of the page - it only takes a second to do and is an important part of our process. I can still answer follow up questions afterwards if needed. Thank you
Hi there, hope the interview went well. Just a reminder that I would be grateful if you could please take a second to leave a positive rating (3, 4 or 5 stars) as that is an important part of our process and recognises the time I have spent assisting you. If you need me to clarify anything before you go - please get back to me on here and I will assist further as best as I can. Thank you