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Can Employers Give Non-Smokers Extra Annual Leave?

on Friday, 17 January 2020.

A recruitment agency has rewarded employees with four extra days of paid annual leave for not smoking at work.

A Swindon-based recruitment company KCJ Training and Employment Solutions has introduced a policy to compensate staff who do not take cigarette breaks during the working day.

The Managing Director of the company has said that the policy is not discriminating against anyone and that he wants a healthier, happier workplace. Explaining the reasons for the additional holiday policy, Mr Bryden said:

"If you say it's three 10-minute smoke breaks a day that equates to 16 and a quarter days a year based on an eight-hour working day…Let's cut it by a third and say you only take one 10-minute smoking break a day, that adds up to just over five days."

Implications of the Policy

Whilst this is an unusual policy, it does not appear to be unlawful. Employers can determine how much paid annual leave to give to their employees, as long as their employees receive at least the minimum level of annual leave as set out in the Working Time Regulations. In terms of the law surrounding discrimination, smokers do not have specific protection under the Equality Act 2010. It is therefore very unlikely that they could make a discrimination claim as a consequence of being treated differently to non-smokers.

On one hand, the policy means that those choosing to stay at their desks during the working day instead of taking regular cigarette breaks are being rewarded for the additional time in the office. An employer could also be seen as taking a positive stance, encouraging its employees to improve their health by smoking fewer cigarettes.

On the other hand, an employer adopting this policy creates a two tier work force. Smokers may also point to their colleagues taking breaks in other ways, be that using social media, looking at non-work related websites on their computers, taking longer in the kitchen or chatting with colleagues.

How Does This Impact Employers?

When adopting any policies, an employer should carefully consider the aims of that policy carefully. If the employer is treating groups of staff differently, it should consider how it can justify this to its employees if the arrangements are queried.

Are you considering a similar policy in your organisation? Please contact Mark Stevens in our Employment Law team on 0117 314 5401, or complete the form below. 

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