According to a 2009 study by the University of Hamburg, smoking breaks cost German companies more than EUR 28 billion annually (unfortunately, more recent figures are not available). Employers are abolishing former smoking privileges, such as additional, possibly even paid smoking breaks, in many companies for financial reasons. In recent years, these decisions have increasingly been brought before the labour courts and the labour courts have taken a strong stand for the protection of non-smokers.
The courts have had to deal in particular with the question of whether smokers who were allowed to interrupt their work in the past for smoking breaks may also be allowed to leave their workplace in future for flexibly chosen smoking breaks. There was also a dispute as to whether an employer who had in the past paid for smoking breaks would still be obliged to do so in the future.
Employers must set up and maintain the premises in the company in such a way that the employees are protected from health risks. According to the Workplace Ordinance (ArbStättV), the employer must continue to take the necessary measures to ensure that the non-smokers among employees are effectively protected from the health hazards of tobacco smoke. Where necessary, the employer must issue a general ban on smoking or a ban that is restricted to specific areas of the workplace.
No right to paid smoking breaks
In the past in some companies, smoking breaks were recognised as paid working time. However, the employer is not bound to this for the future (cf. Nürnberg Regional Labour Court of 5 August 2015 – 2 Sa 132/15). Employees may not invoke a historic company practice of being paid for smoking breaks in order to claim this practice should continue. In German labour law the principle of ‘company practice’ offers employees a basis for asserting claims which are not explicitly set out in the employment agreement or amending agreements. If an employer repeats a certain action on a regular basis (at least three times), the employee can conclude that the employer intends to continue this action in the future. As a result, the employee has a claim for repetition of these actions in the future. Here, there is no regular repetition of certain types of behaviour. Even if the employer did not deduct pay for smoking breaks, this applied regardless of the frequency and length of the breaks, which meant each smoking employee benefited to a different extent from continued payment of remuneration during breaks.
According to German law, a company practice gives rise to a legitimate expectation on the part of the employee that the company practice will continue. In these cases, the courts recognised that there were still no particular indications that the employees had a legitimate expectation of being paid by the employer without any consideration. The obvious unequal treatment of non-smokers is another reason that smokers should not continue to receive paid smoking breaks. While the non-smokers were working, the smoking employees were paid for not working.
No entitlement to additional smoking breaks
The employer can also direct smokers among the employees to use their normal breaks for smoking (cf. Düsseldorf Regional Labour Court of 19 April 2016 – 14 TaBV 6/16) and does not have to grant smokers additional breaks. An employee is obliged to perform his or her work during working hours, i.e. outside of breaks. In this respect, s/he is prohibited from all forms of behaviour which cannot be pursued in addition to work, even if these are generally governed by an individual’s general freedom of action.
The mere desire to pursue certain activities, the pursuit of which in leisure time is protected by an individual’s general freedom of action, does not justify a claim to interrupt contractually agreed working time, which is regulated by law or collective agreements, beyond any interruptions set out in those agreements or by law.
However, the basis of the restriction on general freedom of action in this respect is not the company break regulation as such, but rather the employee’s employment contract. In this contract an employee undertakes to perform the work specified by the employer within working hours. In so doing, s/he waives, for that period, the freedom to determine his or her actions.
The mere fact that an employment relationship has been agreed restricts employees’ general freedom of action during working hours. In addition, smoking workers’ general freedom of action does not give rise to any entitlement to interrupt working time outside of statutory breaks, collective agreements or company rules. There is no such entitlement for smoking, or for any other ‘private’ behaviour.
Smokers are therefore not entitled to paid smoking breaks, nor to be granted further flexible unpaid smoking breaks. Employers can put a stop these practices without the employees being able to invoke a contrary (historic) company practice.