Since 1 July smoking has been prohibited in the workplace. Under the Health Act 2006, employers will now be criminally liable and exposed to fines if they fail to enforce the ban. But will the ban also lead to a rise in employment claims against employers?

Fifteen years ago it was held that an employee did not have a right to smoke at work, even though he had always been permitted to do so. So, when he resigned following the introduction of a smoking ban, he failed in a constructive dismissal claim. Since then, no employee has succeeded in such a claim and, in light of the smoking ban, it seems even less likely that such a claim would succeed today.

Likewise, it seems doubtful that an employee who is banned from smoking at work would succeed in a stress claim against his employer (although the National Institute for Clinical Excellence (NICE) recommends certain ways in which employers should support smokers trying to give up). However, employers should ensure that their disciplinary policies provide that smoking in the workplace is a dismissible offence, to reduce the risk of smokers succeeding in unfair dismissal claims after being sacked for flouting the ban.

As for employees who carry on smoking outside the building (rather than flouting the rules, resigning or giving up smoking), are employers at risk of claims from them? Employers are not obliged to provide smoking shelters, and if they do they must not be "substantially enclosed", so employees will have no choice but to put up with the English weather if they wish to smoke at work. Whilst we do not envisage that employers will face a glut of personal injury claims from employees who have caught hypothermia from smoking outside, employers might find that employees who continue to smoke outside are more likely to catch colds and take more sick leave as a result.

Whether non-smoking employees will be able to bring claims against employers who flout the ban will depend on the type of claim.

Personal injury claims for passive smoking, whether under the Health and Safety at Work Act 1974 or at common law, have rarely been successful. In Holmes v St Andrews Limited, Ms Holmes suffered an asthma attack after being exposed to smoke at work. Her GP wrote to her employer to inform them that her health was suffering. She was then moved to a smoke-free area but was still occasionally required to enter areas where there was smoking. She brought a personal injury claim against St Andrews for its failure to provide a safe working environment. The court held that before the employer received the GP's letter it could not have known that passive smoking was injurious to the employee's health and, after the letter, they had taken reasonable steps to reduce the risk by moving her. Consequently, her claim failed.

Likewise, in the case of Waltons & Morse v Dorrington (1997), the Employment Appeals Tribunal (EAT) held that it could not necessarily be proved that there was a health and safety risk from passive smoking (so a personal injury claim would have been unlikely to succeed). However, now that the Control of Substances Hazardous to Health Regulations 1999 (COSHH) have been introduced, which provide that the employer must show that a substance (for example second hand smoke) is not hazardous, and given the growing body of evidence suggesting a link between passive smoking and injury to health, it seems this might offer the most hope to employees wishing to bring a personal injury claim for health problems resulting from passive smoking.

In Dorrington, Mrs Dorrington in fact succeeded in her constructive dismissal claim. She resigned after complaining on numerous occasions about having to work in a smoke-filled environment, and the EAT held that she had been entitled to do so. It held that her employer had breached its duty to provide a working environment suitable for her to carry out her duties.

We might also see an increase in whistleblowing claims by staff who are victimised for exposing breaches of the ban.

Overall though, it seems unlikely that there will be a significant rise in the number of smoking-related claims as a result of the ban. Although the ban has been highly publicised in recent months, many employers have for a long time banned smoking in the workplace, and/or protected employees from exposure to second hand smoke.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.