Where there's smoke there's ire

Smokers are under siege. Some firms even refuse to employ them. Is itdiscrimination, and is it justified, asks Kathy Sheridan

To some readers of the letters pages, the more addled reaches of the pro-smoking movement are readily detectable. They are the ones who rail against "blatant" discrimination, breaches of civil liberties and all-out assaults on their human rights. And blatant it is. Smokers are coming increasingly under siege, and not just from disgruntled diners.

In Britain, people's right to smoke themselves to death has become a hot topic since the government flew the notion of "patient contracts", under which a doctor would seek certain undertakings regarding a smoker's will to quit, in advance of treatment. One outraged smoker saw this as tantamount to the National Health Service denying his "right to life because of an uncontrollable addiction to a perfectly legal substance", talking of seeking redress under the Human Rights Act. The British government insists the contracts will not be legally binding. But what's the point of them, then, asks a sceptical Liberty, the British civil liberties group.

Some companies are carrying the health argument to its logical conclusion. One German publisher, Eitmann-Verlag, has not only banished smoking in the workplace, as is now pretty much the norm, but also forbidden employees to smoke at all. Its contract of employment specifies that staff must be lifelong non-smokers or have given up many years ago. The rationale is supremely practical. The firm publishes books on the effects of second-hand smoke, its managing director, Frank Woeckel, told the Financial Times, and research by the American Cancer Society suggests smokers are between three and five times more likely to get sick.

So has this happened to Irish companies? The human-resources manager of one large firm scratches a chin in response. "Hmmm. When I think of the more high-profile absentees in this company, it's not necessarily the smokers that come to mind. But I can see the man's logic in terms of disability and early retirement. That can be very expensive."

And, yes, Frank Woeckel would reject even very good candidates for the job if they were smokers. What would happen were someone found to have lied on the application form? "They would immediately be dismissed," he said, "and the fact that we were deceived would be noted on their work reference." Nobody has been sacked so far, so there has been no test case, alas, to show whether Eitmann-Verlag's position is legally sustainable.

It's not clear whether Mark Hodges, a salesman, produced a cigarette before he was ejected from his new job at an English packaging company. After three interviews, during which smoking was "never even mentioned", he was chatting with people on his first day when it emerged that he smoked. Next morning he was summoned to the boardroom and dismissed - not for chatting a lot but for being a smoker. There was no test case there, either. Hodges got another job and, "with hindsight", is just as pleased he doesn't work there.

Forest, the British smokers'-rights group, claims smoking is the new apartheid. A few years ago it analysed 300 job adverts and found that although many mentioned a "non-smoking office" or "smoke-free environment", some went further and specified that only non-smokers should apply. "The most petty employers," it claimed, were local councils, including one that apparently invites members of the public to report any employees caught lighting up.

As long ago as the mid 1990s, the US Supreme Court upheld the right of an employer to require job applicants to sign affidavits swearing they had not smoked during the previous year.

June Duffy, a reformed smoker for two years and human-resources manager of Statoil, says she can never see Ireland going that far. "Employees will always have the right to do what they like in their own time."

About half the US states now have laws stating that people cannot be hired or fired on the basis of whether they smoke. And there is evidence that some organisations, including Palm Beach sheriff's department, have had to overturn non-smokers-only recruitment policies after they led to problems attracting sufficient applicants.

In the legal and equality-campaigning spheres, there is much debate on how far an employer can go in discriminating against smokers. Some of the arguments are riveting. In the Canadian province of British Columbia, for example, courts have accepted that smokers are "disabled" and cannot be discriminated against. In the UK they covered that possibility by excluding nicotine from the 1995 Disability Discrimination Act.

Niall Crowley of the Equality Authority notes that the Act here makes no such exclusion and is, in fact, very broad. "We are not saying that smokers are not covered. They would have to make the case on disability grounds. But what are the implications of that? The legislation prohibits discrimination in employment. But employers are also covered by health-and-safety legislation, so that's a mix that would have to be considered."

Dr Fenton Howell, a specialist in public-health medicine and a spokesman for the anti-smoking campaign ASH, says the British Columbia example applies to employment and whether employers may recruit only non-smokers but could not be used to, say, force an organisation such as ASH to employ smokers, where it would clearly be in conflict with the ethos of the organisation.

"I take the view that smokers are addicted to cigarettes, but I haven't heard anyone suggest that it is discriminating against alcoholics to not have a bar in their place of work," says Dr Howell. "They might be addicted, but they have some locus of control. If you have no leg you have no leg, so you have some permanent loss of function.

"But smokers have the option of several kinds of nicotine replacement - or they can quit - so they are not rendered incapable of living if they go without a cigarette.

"The addiction is to the nicotine, and it's the delivery system you choose to get the nicotine that is the key. The cigarette is just a dirty delivery system. The downside of cigarettes is that other people take on board your pollution, and that must be restricted."

At Statoil, the last in-house refuge for smokers at its IFSC headquarters went a few years ago, when the underused canteen and nearby smoking rooms were closed.

As an enlightened employer, Statoil did not abolish the facility without offering something in return. It agreed to pay smokers' start-up fees for gym membership or to cover the cost of a quit-smoking course if they stayed off the weed for three months. Only a handful took the course - "quite successfully" - and about 10 took the gym route.

Yet there's no doubt the number of smokers there has dropped dramatically. Duffy reckoned about 60 of the 150 staff smoked. After checking, she discovered, to her surprise, that only about 30 did.

So "discrimination" works, after all?