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Ben Jones
Ben Jones, UK Lawyer
Category: Law
Satisfied Customers: 49868
Experience:  Qualified Solicitor - Please start your question with 'For Ben Jones'
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Hello can you assist me today please?

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?

Customer: replied 1 year ago.
Hi there,
I just received a letter from my employer stating that I have breach the smoking policy and said it's a gross misconduct and I might dismissed from work if I found guilty.
There are several building in my work place which is own by another company and I was smoking there where there is no "NO SMOKING" signage. It's not only me who smoke there lot of other employees do but I got caught and I didn't even had single idea that I was not suppose to smoke there. As far as I know I have ignored all the mentioned areas for not smoking

Will they be carrying out an investigation? Also, how long have you worked there?

Customer: replied 1 year ago.
I have worked here for more than 8years.
They just said in letter disciplinary hearing. And at the end it is said that breach of the smoking policy is deemed to be gross misconduct and if you are found guilty we may decide to dismiss you with notice. The thing is I even don't know if I breached the smoking policy.

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

Customer: replied 1 year ago.
I have done all of those research on internet and i got idea about it but what am saying is our employer has no clear suggestion about where to smoke and till what radius we cannot smoke after we come out from our workplace. Ovbiously they have signage in our company building where we cannot smoke and there is designated area. And we all employee know where not to smoke but this is outside our building infront of another company building where all other people smokes freely. Not at any point people will get idea of not smoking on that particular place as it is the way to our car park and open space. And its not just yesterday i was smoking there, it was my daily routine but just caught yesterday and i knew we employees were not suppose to smoke there.

so you say that "i knew we employees were not suppose to smoke there."?

Customer: replied 1 year ago.
No i meant only after i got caught i knew we were not suppose to smoke there. Otherwise i used to smoke there as my daily basis routine. And till the date no one has stopped me or noone has ever warned me from doing so

Had they seen you do it before?

Customer: replied 1 year ago.
No they haven't never. And its not only me who smokes there many other employees does. To be honest no one consider that as a workplace. Normally all employees start to smoke from there until you reach the carpark. We do avoid smoking directly infront of our work building

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.

Customer: replied 1 year ago.
Can we not pick the point where in the smoking policy that they haven't really mentioned the incident place as no smoking zone. And how can we employee know that it is not allowed. We are nearly 500 employee working within this company, nearly 80% are smoker and 60% employee doesn't even know that it is no-smoking zone and smokes there freely and daily.

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

Customer: replied 1 year ago.
Its not even our work building and that company workers does smoke there. In the morning time when HR are not open yet our employee does smoke freely like everywhere even on the areas where there is no smoking signage.

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

Customer: replied 1 year ago.
OK thank you. My interview is tomorrow and hope it goes well. If not then will sure contact you. Thankyou

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

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