Richard White, specialist employment solicitor at Withy King, considers a recent case in which a Scottish employment tribunal ruled that it was fair to summarily dismiss an employee for one instance of smoking despite 12 years’ service.

Many employers have long-standing smoking policies. The smoking ban came into force in England on 1 July 2007, in Wales on 2 April 2007 and in Scotland, the ban was introduced on 26 March 2006. This has led many employers to review and amend their smoking policies.

Smith v Michelin Tyres

Owing to the use of flammable materials in its factories, Michelin has a long-standing smoking policy. The policy permitted employees to smoke only in a designated authorised area and warned that smoking in an unauthorised area could amount to gross misconduct.

When the smoking legislation was introduced, Michelin took the opportunity to review its existing policy and ban all smoking on the factory site, with the exception of some newly designated smoking areas outside the factory. Michelin amended the smoking policy and gave presentations to all staff on the provisions of the revised policy. Notices and plans of new designated smoking areas were displayed in the factory.

Mr Smith had worked as a tyre fitter for Michelin for 12 years and had attended the presentation on Michelin’s no smoking policy. On this particular day, he was caught smoking next to an open fire door. At his disciplinary hearing he admitted his misconduct but claimed it was a mistake and expressed remorse. He said that he had been suffering from depression and had felt under pressure in his work.

The disciplinary meeting considered Mr Smith’s long service, the fact the dismissal fell just before Christmas and that he had a family to support and Mr Smith’s claim that he was depressed at the time. However, Michelin decided that its no-smoking policy was clear and Mr Smith should be dismissed for gross misconduct. Mr Smith appealed against the decision, but his appeal was dismissed.

The decision

As Mr Smith did not deny that his actions constituted misconduct it was not necessary for the tribunal to decide whether Michelin had a fair reason for dismissing him. The tribunal instead focussed on whether the dismissal fell within a band of responses expected from a reasonable employer. The tribunal found that Michelin had had a consistent and strict policy against employees smoking, except in clearly designated areas of the workplace, and the decision to summarily dismiss was reasonable despite the mitigating factors in Mr Smith’s case. Mr Smith’s unfortunate situation had to be weighed against the importance of the policy in preserving Michelin’s business and property and the lives of its other staff.

Interestingly, when determining fairness of the dismissal, the tribunal placed no reliance on the introduction of the smoking legislation in Scotland. The tribunal considered that reliance on the smoking legislation was unnecessary for the dismissal to be fair, in light of the strength of Michelin’s own no-smoking policy.

Comment

This is probably a model case justifying dismissal for smoking. As an employer, if you are faced with a similar situation you might want to assess your case against ‘the Michelin factors’:

• The company had a clear long-standing no smoking policy




• The policy identified smoking in an unauthorised area as a sackable offence




• Visible no smoking signs were displayed in the premises




• The company carried out a presentation to staff about the introduction of the revised smoking policy.

The case also shows how a decision to dismiss which many reasonable employers may have regarded as being harsh, can nonetheless amount to a fair dismissal, provided it falls within the band of responses open to a reasonable employer.

For further advice on this topic, please contact Richard White, specialist employment solicitor at Withy King, on 01225 425731 or email richard.white@withyking.co.uk