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."
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.
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.