Appeal Court stubs out smoko room

Scott Wilson, Partner and Josephine Toop, Solicitor

First published in the NBR, 8 August 2008

It is not often that a smoking-related matter engenders sympathy in this day and age.

What if, however, there are constraints which mean that employees cannot nip outside for a cigarette? This was the difficulty faced by Progressive Meats in their recent case (at Court of Appeal level) against the Ministry of Health.

Industry hygiene standards introduced in 2002 mean that all meat handlers have to don protective gear at the start of their shift, and while wearing it, are not allowed to leave the protective clothing area unless shifting to another work area. For Progressive, this meant that employees who smoked (and there were a significant number of them) would have to undress and redress into their whites during their 15 minute work breaks - not leaving enough time to actually light up.

As a solution, Progressive Meats built a smoking room at its meat processing plant. The room was ventilated and its only purpose was for smoking. While it was located off the cafeteria, there were two self-closing sealed doors separating the rooms. It also had a different air pressure system than the cafeteria, which prevented smoke from escaping back into the café. The smokers cleaned the room themselves so no cleaners had to enter, nor did any non-smokers.

The Ministry of Health brought a case against Progressive alleging that it had breached the Smoke-free Environments Act (which prohibits smoking in workplaces).

The employer defended the claim with the argument that the smoking room was not a “workplace” in any real sense and was, therefore, not covered by the law, as the only reason a person would enter it was to smoke cigarettes. It also argued that it was not a “workplace” because it was a room off an ancillary room (the cafeteria) so it was two steps removed from the workplace. The Court rejected these arguments.

The Court of Appeal agreed with the High Court that Progressivewas in breach of the Act because the smoking room came within the definition of a workplace under that Act. The Court said that it was an internal area within a building occupied by the employer, usually frequented by employees during the course of their employment and so it was a workplace.

The High Court judge expressed sympathy for Progressive, and indeed, it is hard not to sympathise, given that Progressive went to extensive lengths and cost to accommodate the needs of its workers and to try to comply with the spirit of the law. Employers like Progressive may find themselves in a no win position - either giving employees who smoke longer breaks, or risking employees going without cigarettes and becoming distracted in their work, or even, in extreme cases, quitting.

The alternatives for such employers may be stark but the law is clear, however impractical for those employers and their employees that may be.

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