What options does a PA have if her employer smokes heavily in the house whilst the PA is present? I’m aware of the law regarding smoking and as it’s the PAs workplace the employer should refrain as much as possible whilst the PA is present but what can the PA do if the employer refuses and says ‘it’s my house and I’ll smoke if I want to’?
I’m not sure that there is any case in law that might cover this but even if there was I doubt that the employer would change. The PA feels that if she pushes the case she is likely to lose her job.
Hi Les, there is some HSE guidance on this subject here: Health services - Frequently asked questions
Their guidance is generally based on consultation and agreement of reasonable behaviour. We had a similar situation with a client having their heating on all the time, in summer, with windows shut, and refusal to change this. It ended with the client losing all support and struggling massively, but it was their decision.
As with any action or behaviour, if it limits the service users ability to get or retain staff it’s up to them to alter their behaviours to be more reasonable to staff or visitors.
I think if an employee was dismissed because they didn’t like the work environment the employer would be exposing themselves to unfair dismissal action. Anything like this should involve consultation with the legal support usually available via the employer insurance policy.
Thanks Andrew, this is very helpful
I can see this has a degree of complexity and it’s prompted me to look into how we could highlight the special case of an employer’s home becoming a workplace for their employees in the PA and PA Employer Handbooks (this section covers risk assessment obligation BTW which I think the employer should potentially have mitigating actions regarding smoking). Basically the employer has an implied duty to provide a safe environment for work, but where they might not (yet) appreciate this, perhaps the PA could look for opportunities to improve the situation? For example with the weather improving, asking if the employer could take opportunities to smoke outside while they are there. Do you have any examples of more considerate behaviour they could share? Encouraging a soft touch approach might help all parties as the PA needs to navigate this initially, and clearly feels exposed, but the employer could be exposed to a grievance down the line…
There’s a couple of bits of legislation that covers smoking in the workplace in Scotland. These are:
Smoking, Health and Social Care (Scotland) Act 2005
The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006
There were some Frequently Asked Questions produced at the time this legislation was introduced. The FAQs cover areas such as: ‘People working in other peoples’ homes’
- People working in other peoples’ homes
You can see the FAQs here: Clearing the Air - Questions and Answers
There is a section titled ‘People working in other peoples’ homes’. This states:
‘Peoples’ homes are not caught by the new legislation. However, it is recognised that there are instances where people have to visit a residential property to do their job. The guidance for local authorities, NHS organisations and care service providers offers practical advice on how to reduce staff exposure to second hand smoke in these circumstances. For example, workers have the right to ask, not tell, someone not to smoke when they are providing a service to them in their own home. We are confident that those receiving treatment will respect that.’ (emphasis added)
Of course there may well be times when someone receiving support refuses to stop smoking when their PA is there.
The above FAQs also seem to focus on external agencies providing support in someone’s home, not a PA employed by the person themselves who may be working the majority of their time in their employers home. However, it may be useful to know that the above legislation doesn’t apply to people’s own homes.
@LesWatson @Andrew-QuillAccounts @jeremy
I think the problem in this instance is that the employer will (or is likely to) refuse a polite request.
I have checked and there has been no test case to refer to. The feeling from everyone that I have spoken to is that if the PA employer point blank refused to comply with a request to smoke elsewhere or at least away from the PA when they are working, the PA ‘is likely’ to win a case if she takes it all the way to an employment tribunal. I am trying to avoid that happening and trying to help the PA or advise her on what she can do.
It’s certainly a difficult one?
The PAs health has to come first in my view. A job, or this particular relationship, can’t be worth more than their health. I think if I was supporting the PA in this instance I’d be encouraging them try the soft approach as far as it can be taken and/or simply looking elsewhere. Certainly worth encouraging good communication with the employer about it though, they need to understand they have a responsibility to look after their staff and if the PA leaves, they should be clear about the reason why.
Agree Jeremy, although in this instance I think the employer won’t listen. She has lost PAs before for the same reason and it looks as though it could happen again. I advised the PA to try the doftly, softly approach and she has promised to let me know how it goes.
Just a thought: was there any mention of the employer being a smoker at the time they advertised the job for a PA, or in the job description itself? Would this have been mentioned at the interview stage at all? If this was - would the PA have been aware that their potential employer was a smoker and that they were accepting the job on the basis that they were a smoker?
I appreciate there’s different levels of smoking so it might not be clear what this was at the application/interview stage.
I wonder if the PA could request their employer to put in place certain mitigations that would help protect them whilst working. So for example, the use of an air purifier, or an ashtray that reduces the continued smoke levels (if there is such a thing?), or changing certain routines during the day that would reduce their smoke inhalation (eg closing doors at certain times, having windows open, fans or xpelairs used in certain places, or ‘fresh air’ breaks?) Maybe even the provision of more effective PPE masks that could reduce smoke inhalation?
If the employer won’t seriously consider any suggestions and the PA still wants to continue to provide support, maybe they need to take some specialist employment advice? I appreciate this may take them down a more formal route to addressing the issue - but unless there’s someone else their employer will listen to, I’m not sure how the PA can avoid a difficult discussion with their employer, which may put stress on their relationship.
Is there a role for PANS mediation support here?
@LesWatson @euan.smith @jeremy @Andrew-QuillAccounts
Thanks for your reply. I have suggested all of those things to the PA and advised her to try to have an informal, non confrontational conversation with her employer and I’ve told her that I would be happy to speak to the employer if both parties thought it might help.
Unfortunately this kind of thing has happened before with a previous PA and the employer’s attitude when asked was pretty brutal ie. it’s my house and I’ll do what I like. I have left it with the PA for her to decide her next steps and I have asked her to get back to me if she needs more help.
People have a right to smoke. PAs also have a right for a ciggy break, if they smoke.
In both cases, a reasonable accommodation would be that all ciggy breaks are taken outdoors, under a rain cover. This makes total sense.