Generally yes, employees must make up for any time spent on cigarette breaks, but the issues are not straightforward.

It is not performance of work: Employees are obliged to work during their working hours and may only take a break for the purposes of having a meal or resting or taking a safety break. Employees can smoke during permitted breaks, but only in any premises which have been designated for such purposes, and only during their break times.

No right to wages: As smoking does not constitute the performance of work, any time spent smoking (outside official break times) is not included for the purposes of calculating the hours worked and an employer is not obliged to pay any wages for the time spent smoking. If after normal working hours the employees make up for their smoking time, this will not be considered as overtime.

Breach of obligations: An employee may not take a smoking break any time he wants. Leaving the workplace without employer’s consent may be considered a minor breach in some circumstances, but it could also be considered a serious breach of an employee’s obligations, depending on the potential consequences, risks, type of workplace, etc. If an employee takes a smoking break without obtaining his employer’s prior consent, this may justify the termination of the contract without any severance pay (sometimes even with immediate effect).

In practice, it will all depend on the employer’s pragmatism and benevolence - where and when the employer allows employees to smoke. In some organisations smoking is not possible at all for health and safety reasons. Equally it may not be possible to make up for any smoking breaks due to shift work, etc.

Where should employees smoke? Employees should think about where they go to smoke – they should not smoke in the workplace or at any other premises where non-smokers would be exposed to the effects of smoking or where smoking is prohibited.

Penalties and damage: An employer may not impose penalties for the mere fact of smoking during working hours, but it may demand compensation for any losses incurred, which may be up to 4.5 x the employee’s average monthly earnings in the case of negligence, and for the entire damage caused, including any lost profits, in the case of intentional damage.

Criminal liability: In certain circumstances, criminal sanctions may apply, for example if as a result of authorised absence from work another person is injured or if the employee causes damage to property.