A court in Germany has held that under German employment law, employers are entitled to dismiss employees without notice for smoking in the workplace.
Nowadays days strict no-smoking policies operate in most buildings, including in the workplace. The reason for such policies is the protection of non-smokers from the dangers of passive smoking.
In a recent case, Germany’s Federal Employment Tribunal held that an employer who operates a no-smoking policy is entitled to dismiss without notice an employee who smokes in the workplace (decision from 27.09.2012, Az. 2 AZR 955/11).
Dismissal without notice
The employer defended its decision to dismiss the employee without notice, arguing that the employee’s actions put other employees at risk. This was because the employee worked in a printing shop where lint would build up on the floor.
To support its position, the employer referred to the fact that between 1996 and 2009, the employee had received four warnings for smoking.
The employee defended his actions by claiming that although he smoked daily at work, he did so in the smoking areas provided. He admitted that if he strayed out of the smoking areas it was by four to five meters at most. As a result he argued that his actions posed no risk.
The Regional Employment Appeals Tribunal in Düsseldorf originally found for the employer, stating that the employee had repeatedly breached the employer’s no-smoking policy (decision from 09.11.2011, Az. 12 Sa 956/11). The Federal Employment Tribunal agreed. It took the view that the employee’s actions posed a risk to other employees and to property. On account of the numerous warnings the employee had received, there was clear evidence that the he would continue to breach the employer’s no-smoking policy. As a result the employer’s reaction in dismissing the employee without notice was proportionate and there was no reasonable chance of the employment relationship continuing.
This case demonstrates that an employer can be entitled to dismiss an employee without notice for breaching a no-smoking policy. To avoid being dismissed, employees should therefore abide by any no-smoking policies implemented by employers.