Smokers facing a crackdown on cigarette breaks and even dismissal by employers may have little recourse in law against such action, a Birmingham employment specialist warned.
The tough stance taken by employers against smokers w as highlighted before Christmas when Sophie Blinman from Somerset was sacked just 45 minutes into the first day of her new job after bosses discovered she smoked.
Miss Blinman said afterwards she was taking legal advice and possible action under the Human Rights Act.
* Tell us your view on this story. Get in touch by email, messageboard or by sending a web letter to the editor *
Jane Byford, Birmingham-based law firm Martineau Johnson, said companies were within their rights to adopt such positive discrimination and smokers who were penalised under company rules in these circumstances could not rely on employment law to bail them out.
"Unfortunately for Sophie Blinman, she really has no way of appealing against this decision," said employment partner Ms Byford.
"Due to her short time with the business, she is not entitled to bring a claim for unfair dismissal and she would not be entitled to compensation for failure to give statutory notice.
"One avenue of recourse may be to challenge the employer's actions on the grounds of breach of human rights, in particular the right of respect for private life."
This might be limited not only because it was against a private sector employer, but also because businesses also had a duty to act to protect the health of other employees.
"Therefore, regardless of Ms Blinmam's offer to not smoke inside the workplace, there may be an argument that smoke on clothing could trig-ger respiratory problems in others," she added.
The Government has been making progressive steps towards regulating smoking policies within companies, and more employees are being forced out on the streets for their regular cigarettes.
"There have been successful claims in the past by employ-ees against companies who allow smoking in the workplace and the action taken by this company in adopting a policy of not employing smokers is just an extension of this," said Ms Byford.
Smokers should also be wary of a crackdown in cigarette breaks during working hours, a benefit which is not often shared by non-smoking colleagues.
By allowing these frequent breaks, employees could be seen to be allowing shorter working hours for those with an addiction.
