Are smoking breaks unfair to non-smokers?
Smoking break during working hours: what is allowed?
Deduct smoking breaks from working hours?
For many years the employer paid for his employees' smoking breaks. But that should end now. In order to ensure that all employees are treated equally, the employer demanded that people “stamp out” smoking when they leave the workplace.
Company agreement ends paid smoking breaks
After the new company agreement came into force, according to which smoking breaks are no longer paid, the following working hours were deducted from an employee: For the month of January 2013, 210 minutes for smoking breaks were deducted from working hours and not remunerated (shortfall: € 44.41 gross). For the month of February, 96 minutes (shortfall: € 20.30 gross) and for March 572 minutes (shortfall: € 120.96 gross) were deducted for smoking breaks.
Smoking breaks during working hours: no company exercise
The employee brought an action at the labor court in Würzburg and demanded the deducted salary to be returned. In doing so, it relies on operational practice.
However, the Nuremberg Regional Labor Court agreed with the employer. Even if the employer continued to pay the remuneration during so-called smoking breaks, for which employees were allowed to leave their jobs at any time, the employees cannot trust that the employer will continue this practice. A claim from operational practice does not arise (judgment of 05.08.2015, Az. 2 Sa 132/15). A claim basis for the asserted claim is not recognizable. In particular, the prerequisites for an operational exercise are not met.
Unequal treatment through smoking breaks
According to the plaintiff, employees withheld their work for an average of 60 to 80 minutes per day. The fact that this was done without sanctions does not change the fact that the use of the smoking breaks during working hours was unauthorized and constituted a violation of the main performance obligation from the employment relationship. In addition, the granting of paid breaks for smokers represents unequal treatment compared to non-smokers in the same company.
Business practice has nothing to do with smoking
A company exercise is understood to mean the regular repetition of certain behaviors by the employer, from which the employees or employees of a certain group can conclude that they should be granted a service or benefit over the long term. An example of this would be a bonus for the company anniversary. Here, however, there was already no regular repetition of certain behaviors. Every employee benefited differently every day from the continued payment of the remuneration for smoking breaks. A uniform granting of paid smoking breaks with a certain duration is not associated with this.
The smokers' confidence in maintaining the payment of the smoking breaks could not arise because this obviously led to an unequal treatment with the non-smokers. For the same amount of money, namely pay in line with the collective agreement, they have to do an average of ten percent more work than smokers.
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