It is common practice in some companies for employees to take smoking breaks without logging out from an existing time recording device. A recent dispute dealt with a case where an employer had tolerated this for many years without knowing the exact frequency and duration of each break. Pay deductions had not been made for many years.
Employer stops paying smoking breaks
Upon consultation with the works council, the employer then changed this practice and created a designated smoking area at the main entrance in close vicinity to the time recording device. From that day, this was the only location where smoking was permitted. Employees were instructed to record their absence in the time recording system when taking breaks for smoking. Furthermore, such breaks were no longer paid.
A worker who incurred a noticeable pay cut disagreed and filed legal action for payment of smoking breaks. He argued that a claim would arise from customary practice and smokers would be discriminated following this new practice.
Nuremberg State Labor Court dismissed the complaint. Such a claim does not arise from the law, any collective agreement, employment contract, or from customary practice.
Paid smoking breaks implicate disadvantage for non-smokers
Employees cannot generally expect to be granted smoking breaks with continued pay on a permanent basis. Consistency is already lacking since the employee had taken such breaks for different amounts of time every day, making proposals of the employer not definite enough. Even the legally required breaks would be unpaid breaks without any other legal basis. Moreover, employees cannot rely on continuing practice because the old provision was disadvantageous to non-smokers. On average, they had to work more than 10% longer than smokers for equal pay. Furthermore, an incentive for harmful smoking is incompatible with health protection.
Court decision contribution to occupational health?
The decision makes smoking less attractive and thus represents a contribution to occupational health. In the case at issue, the employer had implemented such a provision by means of a work agreement. Any provisions of this nature should always be implemented by consulting with the employees. We will gladly assist you in drafting such work agreements.
Nuremberg State Labor Court, August 05, 2015 – 2 Sa 132/1
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