Waltons & Morse v Dorrington [1997] IRLR 488 (EAT)

The introduction of smoking policies in the work place frequently becomes a major industrial relations issue. But the one about the cigar smoker, the pipe smoker and the cigarette smoker will have an impact beyond both its own work place and the rights of smokers and non-smokers.

The Employment Appeal Tribunal has held that a contract of employment contains an implied term that an employer shall provide a working environment which is reasonably suitable for the performance of its employee's contractual duties, so far as is reasonably practicable. In reaching their conclusion the EAT have drawn on an employer's obligation set out in the Health and Safety at Work Act 1974 and the employer's duty to provide and maintain a reasonably safe working environment which has adequate facilities and arrangements for staff welfare and is without risk to health.

Mrs Dorrington had worked for a firm of solicitors for 11 years. From December 1992 she had complained about the heavy smoking of lawyers in her immediate vicinity. Nearly two years later a smoking policy was devised: solicitors were to be allowed to continue smoking in their own rooms and a room was designated as a smoking room.

Mrs Dorrington was next to the designated smoking room as well as the rooms of the cigar smoking, the pipe smoking and the cigarette smoking lawyers. The firms inadequate ventilation system meant that the policy made no improvement to the problems as it was still just as smoky where Mrs Dorrington sat.

When the non-smokers raised the issue, nothing was done about it. So Mrs Dorrington looked elsewhere and when she was offered another job, she handed in her notice explaining that she was leaving because of the smoking problem.

The Employment Appeal Tribunal have upheld her claim of constructive and unfair dismissal. They have formulated an implied term that "The employer will provide and monitor for his employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them [the employees] of their contractual duties". The EAT was satisfied that a suitable working environment could have been provided without difficulty. Given the inadequate ventilation, the firm should have banned smoking from the building. Equal weight cannot be given to smokers and non-smokers as the choice of an individual not to smoke has no adverse impact to those nearby, but the reverse is not true.

The EAT also agreed with the Industrial Tribunal that Mrs Dorrington's delay in leaving while she found other work would not defeat her claim for constructive dismissal. She quickly found an alternative job, but as she needed to work because of her family commitments and given her 11 years service, she had not waived the employers breach while she continued at work as she looked for another job.

So an employee may be entitled to a smoke free environment and the failure to provide one can amount to a fundamental breach of contract entitling the employee to resign and claim constructive dismissal. By creating this implied term into contracts of employment, the EAT has given real effect to the protection of health and safety issues at work. It goes much further than the right of employees to leave work in cases of serious and imminent danger (Section 100(1)(d) of the Employment Rights Act 1996) so grudgingly introduced by the Conservative Government. It also gives contractual force to an employee's obligations in Section 2 of the Health and Safety at Work Act 1974.