Where there’s smoke, there’s no hire

As society’s tolerance towards smoking falls, it is not surprising that some employers are preferring to hire non-smokers. What are the downsides of hiring smokers and are employers actually allowed to discriminate against smokers?

There’s no question that smoking is becoming socially unacceptable. There’s also no doubt as to the negative health effects of smoking. The impact of smokers in the workplace however, is less clear.

Certainly there is a school of thought that smoking doesn’t affect an employee’s performance. There are however, some logical potential disadvantages to hiring smokers:

• Smokers may break more frequently than non-smokers and may be anxious or irritable if they don’t “get their fix”. This may result in decreased productivity;
• The smell of smoke can be fairly off-putting, both to non-smoking colleagues and clients;
• Smoking is unhealthy and studies indicate that smokers use more sick leave;
• Smokers must now congregate outside to smoke: presenting a potentially non ideal image to clients and the public; and
• Having smokers in the workplace doesn’t assist an employer in promoting a healthy workplace for customers and colleagues.

Can an employer lawfully discriminate against a smoker?

Although the Smoke-Free Environments Act 1990 prohibits smoking in the workplace, the Act is silent as to whether a person can be discriminated against because they are a smoker.

The Human Rights Act 1993 prohibits discrimination on certain grounds, including religion, race, sex or disability. Discriminating against a smoker however, is not a specific prohibited ground of discrimination. Presumably, this means that it is not unlawful under the Human Rights Act for an employer or potential employer to discriminate against employees or potential employees on the basis that they smoke.

An important distinction needs to be drawn between existing employees and those applying for employment. On the above basis, it would seem that an employer could lawfully refuse to employ someone because they are a smoker. But due to other obligations at law, employers would not be able to terminate employment of existing employees solely because they are smokers. Employers would also need to be careful that they don’t disadvantage an existing employee by unjustifiably treating them differently because they are a smoker.

A discussion

It would be fair to say that the potential negative side effects set out above would almost certainly discourage employers from hiring an employee, even when they have suitable experience and qualifications for the position. Studies have proven that smokers take more sick leave than their non-smoking colleagues. This not only results in greater costs to the employer, but may also result in a drop in team morale as other colleagues are left to cope with the smoker’s absence.

Decreased productivity can also be a negative side effect, although a direct correlation between smokers and lower productivity is difficult to prove.

And then of course, there’s the potential for smoking employees to develop lung cancer. Little needs to be said about the devastating effect such an illness can have on an individual or the workplace.

ASH (Action on Smoking and Health) do not support discrimination against smokers. ASH believes the notion of hiring non-smokers only would be ridiculous, given 25% of the population are smokers and it is not reasonable to presume smokers wouldn’t make good employees. ASH’s position has some merit. After all, Winston Churchill, Bill Clinton and Denny Crane are all noted smokers.

The European Commission has stated that employers may legally be able to shun smokers when applying for a position of employment.

In the United States some employers will not employ smokers and some have terminated a smoker’s employment on the basis they did not quit smoking after requests to do so. As a lot of employers in the US provide employees with medical insurance, such a stance is likely to be related to the effect of employing smokers on the cost of medical insurance premiums.

Whether New Zealand employers will follow this international trend is yet to be seen, but as society increasingly places restrictions on people who choose to smoke, it will not be surprising if they eventually do.

Richard Mrkusich is a specialist employment lawyer at Kensington Swan.

Compiled by: Sudhir Jain

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