Denmark: High Court judgment regarding summarily dismissal due to violation of workplace smoking policy

06 February 2017

Mia Boesen

In a new Danish High Court, Eastern Division, judgment passed on 16 January 2017, the High Court decides whether a dismissal due to violation of workplace smoking policy was justified.

Background:

Employee A had 30 years of seniority with the company B. B is a food business subject to numerous Danish and EU sets of rules as well as inspections by the authorities. On 25 and 26 June 2014, an audit inspection took place at B's premises.

At the audit inspection, A was seen smoking in an area in which smoking was not allowed for food safety reasons. A was therefore given an oral warning because of his smoking, such warning subsequently being confirmed, i.a. by letting A read what was written in the report about the warning. A confirmed that he had no objections thereto. As a consequence thereof, a tightening of the smoking policy was announced to all employees in August 2014. 

On 13 November 2014, A was dismissed because he had been smoking at the premises of B again and thereby had violated the smoking policy.  

However, A did not consider the dismissal as justified – partly due to his long seniority of 30 years, and partly because he denied having received an oral warning.

The judgment:

After the presentation of evidence, the High Court took the view that B's smoking policy had been established in order to comply with Danish and EU regulation on food production and to achieve and retain the FSC certification which is necessary  to attract and keep international customers demanding high standards as to safety and quality.  Furthermore, violation of the smoking policy might have considerable consequences for B in terms of lost customers.

Based on the witness statements, the High Court also took the view that A had been given an oral warning.

At the time when the oral warning was given to A, it appeared from the smoking policy being in force at that time that violation might have employment law consequences, and in the subsequent announcement of the tightened smoking policy in August 2014, dismissal was stated as a consequence of violation. 

With regard thereto and to A's position in the company, the fact that it had not been expressly stated in connection with the oral warning that further violation would have consequences for the employment, cannot lead to another result.

The dismissal of A was therefore deemed as a justified dismissal.

Bird & Bird's comments:

The judgment confirms the rule that a warning will be required before dismissal can take place. In this situation, it was considered of great importance that compliance with the smoking policy is indeed crucial to B being a food business, which is why the oral warning and the subsequent general tightening of the policy were sufficient.  

If the business activities of B were not dependent on the smoking ban, it is our guess that the dismissal would probably not have been considered as a justified dismissal – especially due to the long seniority of A – since he had not been given a written warning and since it had not been notified to A (in writing) that repeated incidences of smoking could result in dismissal.

However, we find it of vital importance that a detailed smoking policy had been established, which is why it is always recommendable to establish such policies and expressly state the consequences of non-compliance.

It appears from a Dismissal Board decision from 2008 it was considered as unjustified to dismiss two childminders because their spouses did not comply with non-smoking rules. Even though the childminders had been given a written warning, they could not be held responsible for the acts of their spouses.

Authors

Mia Boesen

Associate
Denmark

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