In its November 13, 2017 judgment, the High Court of Justice of Cantabria rejected a complaint filed against a company that prohibited smoking throughout its factory grounds, including in outdoor spaces where workers went to smoke during their 15-minute breaks.

The issue is interesting because it is not a case of determining whether employees can legally smoke during business hours, but rather whether they can smoke, during their breaks, in the company’s open-air spaces.

In the case analyzed, the labor union plaintiff argued that banning smoking in an open-air space within the work center meant that employees had to leave the factory grounds, which they could not do in the 15 minutes allotted, since they had to get all the way to the exit, clock out, return and clock back in, as well as change out of and back into their work uniforms.

Citing freedom of enterprise as well as the business owner’s power to manage and control the work activity, the Court deemed that the company’s decision did not violate employees’ fundamental rights, as these rights are not absolute but rather must yield to other constitutionally relevant rights or interests, such as the business owner’s power to manage and control the work activity, which is carried out during the work day (even during breaks) and at the work place. This is especially the case when a company makes a rule in compliance with public health regulations that aim not only to protect the health of second-hand smokers but also of employees that smoke.

In conclusion, the Court rejected the plaintiff’s complaint on the understanding that the company, as owner of the work center, can indeed ban smoking on its grounds, even in outdoor spaces, and that this authority cannot be not restricted by the fact that the company had previously allowed employees to smoke in those open-air spaces.

Isabel Esteban

Garrigues Labor and Employment Law Department