Smoking Breaks at Work

By Amanda Beattie
16 Sep 2022

Employees are not automatically entitled to take a smoke break during the working day, and you are legally permitted to stop them from doing so.

However, before you do, you should weigh up the pros and cons of these breaks. Carry on reading to see what these are, or speak to one of our consultants today for immediate HR or health & safety advice on 01455 858 132.

What are cigarette breaks?

Smoking breaks are the time staff members take off to smoke during the workday. To fully understand them, you need to understand staff break entitlement. The first thing you need to know is that entitlement is based on the hours worked in a day. The second is that the exact same rules apply to both smoking and non-smoking employees.

The Working Time Regulations

Under the Working Time Regulations, adult employees should be provided with a rest break period of at least 20 minutes if they work for more than six hours in a working day. This means that, as long as you are allowing them the opportunity to take this, there is no obligation for you to permit any additional time for smoking breaks at work.

It’s down to you whether or not to offer additional breaks. What is certain is that whatever you offer, you should treat all your employees equally. Allowing smoking staff to take additional cigarette breaks, while not providing the same time for non-smoking staff could result in claims of unfair treatment.

As smoking is not a protected characteristic, you are not legally obliged to treat smoking employees the same as non-smoking employees. The suggestion to provide staff with the same amount of rest breaks isn’t down to a legal obligation. However, it will help you reduce the risk of unequal treatment which could lead to a constructive dismissal and poor staff retention.

The Smoke-free (Premises and Enforcement) Regulations 2006

Smoke-free legislation was introduced in 2007. This put a ban on all smoking in the workplace and enclosed public spaces (with some exceptions). However, the Health & Safety Executive (HSE) isn’t responsible for enforcing smoke-free legislation. What the HSE will do if it has concerns regarding smoking is bring the issue to the attention of the local authority.

UK law states that smoking is permitted in company vehicles so long as that vehicle is only used by the employee. The employer must agree to allow smoking in the car.

What about e-cigarettes and vaping?

Legally, smoking is defined as possessing a lit substance that can be inhaled or exhaled. This means that devices used for smoking include:

-           Cigarettes

-           Cigars

-           Pipes

-           Electronic cigarettes (including vaping)

In other words, it doesn’t matter what they’re smoking, just that they are taking breaks to smoke it.


employee smoking e-cigarette


Should you be providing cigarette breaks?

The potential HR risks

Smoking in the workplace has been illegal since 2007, meaning any smoking breaks will likely need to take place outside of business premises.

The time taken to reach a specified smoking area could easily mount up, leading to employees taking significant periods away from their work and impacting upon how productive they are.

You should also bear in mind that employees who do not smoke may complain that they are not being provided an equal amount of breaks to their smoking colleagues. This could foster accusations of preferential treatment for the smokers. Potentially, non-smokers could be left feeling isolated.

To counteract this, you may consider letting non-smokers have more breaks as well, which could further contribute to decreased productivity.

Because smoke free employment law means staff have to leave the workplace premises to go on smoke breaks, you should remember that they are still bound by your code of conduct. Not only this, you could be liable for their behaviour. In other words, if discrimination or harassment occurs, you are still responsible for dealing with it—even outside of business grounds at a smoking shelter.

The potential health & safety risks

Aside from the health risks to the individual employee, smoking staff also put their colleagues and the business itself at risk. After a cigarette break, smoking devices should be thrown away correctly, or stored properly to reduce the risk of fire.

For cigarettes or cigars, the employee needs to make sure they are properly put out before disposing of them. E-cigarettes don’t pose the same risk, they also don’t expose staff to second hand smoke. However, there is a small fire risk with these devices, including the chance to explode.

If there is a fire on-site, you will be liable as the employer, and could face fines and business closure as a result.

The benefits

While smoking is unequivocally harmful to your health, smoking breaks aren’t entirely without their benefits.

Staff who take smoke breaks are taking time to have breaks from work. This is enormously helpful for both morale and productivity. These breaks are often helpful for establishing connections amongst colleagues. Staff who go on smoke breaks together usually develop close working relationships.

As you can see, the benefits of giving smokers a break is more down to the ‘break’ than the ‘smoke’. To that end, it’s important that you emphasise the importance of staff taking regular breaks. Mismanagement of this could lead to resentment, and a loss in productivity, rather than a gain.


staff member taking a smoking break


Providing smoking breaks

Effective break management

Managing breaks at work is a skill. What’s more, break management looks different in every business. There would be obvious differences between, for example, a taxi company and a public bank. In all cases, encouraging staff to take breaks is just as important as making sure they don’t abuse the time given to them.

Break rooms

The workplace break area is a key part of your management strategy. It’s not enough to just assign other rooms as break areas. Having a good indoor and outdoor setting near to the workplace means that staff won’t have to go to public places for smoking breaks. This will reduce the time getting back and forth, and impact whether they take more or less time on break.

For example, if you don’t have a break room and the nearest spot to take time off is a coffee shop ten minutes away, then this could cause staff to want to work through the day with as few breaks as possible. Alternatively, it could mean staff go to the coffee shop instead of staying on work premises, and end up coming back late from their break. Providing good facilities, including smoking areas, combats both scenarios effectively.

Lunch breaks

Employers can encourage staff to smoke during their lunch break instead of taking a rest break during the work day. This may cause some tension however, so if you choose to do this, make sure you are backed up by your employees contract and general employment documentation.

For more tips on managing breaks, speak to one of our HR consultants today on 01455 858 132.


employers smoking shelter legally required?


How to effectively provide smoking breaks

If you do allow your staff additional smoking breaks, it is highly advisable that you construct a smoking in the workplace policy to clarify business rules surrounding this.

To clarify, this isn’t a smoke free policy, but a document which can be used to outline the times during the day that staff are permitted to have a smoking break and whether non-smokers will also be able to take a break at these times too.  If you don’t wish to provide any additional time for staff for these breaks, you may construct rules imposing a rule that they need to make this time up later.

For example, if staff have a 10 minute break in the morning to smoke, they’d be expected to take 10 minutes off their lunch hour. If they don’t take this break, they can have their full hour as normal. Many employers adopt this approach as an effective time management strategy.

Encourage quitting for a smoke-free workplace

Of course, employees who smoke are likely to do this during general break times and it will be difficult for you to try and stop them during their own free time.

If you wish to encourage your staff to stop smoking, you cannot implement a smoking ban. Instead, you should take steps to raise awareness of the potential health issues associated with it, such as through the use of a smoking cessation program. These programs are typically designed to teach staff how to quit by providing them with counseling and techniques that can assist in breaking the habit.

In a similar vein, you may also be able to access support for your smoking staff via an employee assistance programme. This can help them tackle issues such as nicotine addiction and encourage them to become smoke free.


rules for an employers smoke free policy and ban


Expert support

Smoking is a tricky HR issue. Legally, smokers don’t have many protections, but that doesn’t mean employers should rush to enforce a workplace smoking policy or smoking ban.

Instead, to support their health, and keep morale high, you should keep staff in the conversation. Allow them to raise their concerns or issues, and see if there are ways to manage breaks in your workplace more effectively.

If you are experiencing difficulties with your employees taking smoking breaks, or want to introduce a smoking break policy, get expert advice from an HR or health & consultant today on 01455 858 132.

About the Author

Amanda Beattie

Amanda represents corporate clients and large public bodies, including complex discrimination and whistleblowing claims. Amanda also drafts and delivers bespoke training regarding all aspects of employment law, including ‘mock tribunal’ events; in addition she also frequently drafts employment law articles for various publications for Croner and their clients.

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