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Ask the expert: Smoking and recruitment law

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31st Mar 2009
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When recruiting, can an employer list 'non-smoker' as a desirable attribute? Esther Smith and Matthew Whelan advise.

 

 

 

 

 

The question:

I am currently updating the 'person specs' for some of our vacancies, and was just wondering whether we would be able to list 'non-smoker' under desirable attributes? I am a bit concerned that this will be unfair discrimination - we do have an extensive smoking policy, and offer support and assistance to those employees who wish to give up smoking, but obviously there is nothing specific relating to recruitment.

Legal advice:

Matthew Whelan, solicitor, Speechly Bircham

I think it would be unusual to cite this in a job specification unless there is a good reason why you want a non-smoker for the role.

You specifically mention discrimination. Smoking in itself does not constitute a disability under the Disability Discrimination Act so a smoker would not be entitled to rely on the protection offered by that act simply because they smoke. They may however have another condition (which may be related to their smoking) which falls within the meaning of a disability.

It may be possible for smokers to argue they are being indirectly discriminated against by this requirement if it could be proven that it puts a particular group at a disadvantage. An example is if more men than women smoke it could be used to show it has a disparate impact on men. Indirect discrimination can be justified if the requirement could be shown to be a legitimate means of achieving the underlying aim.

Unless there is a specific reason (usually to do with the job) why you would want a non-smoker, I would think about whether citing this as a desirable attribute would help the business. You can stop people from smoking while they are at work so it would not be necessary from this perspective. People could challenge this requirement and it may discourage people who have the right skills and experience from applying.

 

Matthew Whelan can be contacted at [email protected]. For further information, please visit Speechly Bircham

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Esther Smith, partner, Thomas Eggar

There is nothing illegal or unlawful about specifying that you only want to employ non-smokers. The only possible challenge that could be raised would be if someone were to try and claim that this amounts to some form of protected disclosure. The only thing I could see any possibility of someone trying to argue would be disability discrimination, but that is a pretty big stretch. They would have to argue that their smoking somehow qualified as a disability, which given that it is self inflicted would be virtually impossible.

So, in summary, I think that you would have no problem in listing 'non-smoker' as a desirable attribute.

 

Esther Smith is a partner in Thomas Eggar's Employment Law Unit. For further information, please visit Thomas Eggar

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By policymaker
31st Mar 2009 14:04

Given that smokers are more likely to be ill, leading to both more frequent short term absences and an increased risk of long term absences due to smoking related illness, it makes economic sense for organisations to try to avoid employing them.

The savings in sick pay and other absence related costs such as loss of productivity or employing temporary staff, potential higher premiums for private health care and life insurance and the cost to the pension scheme of ill health retirements etc can make employing non smokers more cost effective.

It all adds up to a legitimate means of controlling costs but is very difficult to enforce - applicants simply won't admit that they smoke if they know about the policy and you are likely to face unfair dismissal claims if you fire existing staff who take up smoking outside the work place.

Having "non smoker" as a desirable attribute looks like a good way to go - just don't expect too much.

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