For the past few years, an employer's right to prohibit its employees from smoking in the workplace has been a widely debated issue in Finland. Some regard it as part of the employer's right to direct work, while others consider it restrictive of fundamental rights and privacy. In 2010 the Labour Court issued a judgment(1) granting employers a relatively extensive right to prohibit their employees from smoking in the workplace. This update analyses that judgment in detail.
The employer's right to direct work is set out in the Employment Contracts Act, according to which employees must observe the instructions concerning performance that are issued by the employer within its competence. The employer is also entitled to determine the efficient use of working hours, since the right to direct work entitles the employer to require that the employee use his or her working hours for the performance of work. Moreover, the employer's right of supervision is mentioned in several collective agreements. Regarding smoking issues, the employer has a statutory obligation to prohibit, or at least restrict, smoking in the workplace.
The defendant, a food industry group, had prohibited smoking at all of its group companies' production units, including the outdoor areas of the worksite. As a result, the employees performing shift work – who could not leave the factory area during their breaks – were unable to smoke during their working day. The employees' daily breaks were included in their working hours. The same smoking prohibition applied to all employees. Also at issue was the question of whether the employer discriminated between shift workers and white-collar workers, since the latter were allowed to leave the worksite during their breaks and could therefore smoke during their working day.
The defendant mainly based the smoking prohibition on image-related reasons, stating that operating in the food industry requires a higher level of hygiene than in other industries. In addition, the defendant referred to the fundamental right to protection of property, based on which the employer is entitled to use work spaces as it sees fit. The plaintiff, a food workers' union, claimed that the smoking prohibition restricted the fundamental right to life, personal liberty and integrity. According to the plaintiff, a restriction of fundamental rights cannot be justified solely on the basis of image-related reasons, and the employer's right to direct work cannot be extended outside working hours.
The Labour Court held that regardless of the fact that the defendant's operations in the shipping department required less stringent hygiene requirements than those in the food-processing department, the application of a consistent smoking policy across the group could be justified. In addition, prohibitions of the same kind had been carried out in other large companies in the food industry. The employer's right to direct work could also be derived from the applicable collective agreement, but not at the expense of infringement of the employees' fundamental rights. The court referred to the core purpose of the Tobacco Act, which is to end the use of tobacco products. The court noted that as prevailing perceptions of smoking have changed and the restrictions on it have become stricter, the smoker's right to integrity has been weakened. Based on these grounds, the court dismissed the case, allowing the employer to uphold the smoking prohibition at the workplace. However, one court member dissented.
The court partly based its judgment on the deputy parliamentary ombudsman's statement that smoking restrictions can – based on the employer's right to direct work – be taken further than described in the Tobacco Act, provided that the grounds for restriction are acceptable. The court's decision strongly supports the increasing disapproval of smoking in the workplace.
For further information on this topic please contact Seppo Havia at Dittmar & Indrenius by telephone (+358 9 68 1700), fax (+358 9 65 2406) or email ([email protected]).