Order to smoke only during breaks, subject to co-determination?

Isn’t the order to smoke only during fixed breaks not subject to co-determination? So the LAG Mecklenburg-Vorpommern in a recent decision.

According to a recent decision, the order of an employer that smoking is only permitted during the specified breaks is regularly not subject to the co-determination right of the works council from Section 87 (1) No. 1 BetrVG (LAG Mecklenburg-Western Pomerania, decision of March 29, 2022, 5 TaBV 12/21).

The case

The employer and the works council are arguing about whether the employer’s instruction that smoking is only permitted during breaks is subject to co-determination.

The employer provides logistics services in a seaport in which large quantities of wood and wood products in particular are handled and in the immediate vicinity of which there are several wood processing companies.

The employer is bound by collective agreements. The shifts, the regular working hours and the breaks in the respective shifts are specifically defined in the applicable framework collective agreement.

In 2011, the employer and the works council regulated the following in so-called company regulations: There is a general ban on smoking on the entire premises of Seehafen A-Stadt GmbH. Smoking is only permitted in the designated areas (smoking areas).

In November 2020, the employer issued rules of conduct for the seaport’s premises, which state, among other things: Smoking, including the use of e-cigarettes, is expressly prohibited outside of the signposted areas; a general smoking ban applies. Smoking is therefore only permitted on the “smoking islands” listed in Appendix 1 and only during the breaks stipulated in the tariff.

The employer asked her employees to confirm their acknowledgment of this order by signing it and threatened consequences if they refused to sign. The works council demanded that the order be withdrawn due to the lack of participation by the works council and that the employees be informed accordingly.

The LAG’s decision

The LAG has decided that the works council is not entitled to any injunctive relief, since the employer is right of co-determination not violated hat.

In this respect, the LAG denies the works council’s right to co-determination § 87 Paragraph 1 No. 1 BetrVG (Questions about the order of the company and the behavior of the employees in the company).

The LAG first notes that a right of co-determination is not already excluded or at least restricted according to the opening sentence of Section 87 (1) BetrVG, since There are no legal or collective bargaining regulations on the relationship between smoking and working hours may be.

However, according to the LAG, the disputed part of the code of conduct is not an orderly behavior that requires co-determination, but only a co-determination-free work behavior affected. In general, the LAG first gives the principles again as follows:

  • subject of the right of co-determination Section 87 Paragraph 1 No. 1 BetrVG is the operational coexistence and interaction of employees. The employer can influence and coordinate this by virtue of his managerial power through rules of conduct or other measures. The purpose of the right of co-determination is to allow employees to participate on an equal footing.
  • On the other hand, regulations and instructions that directly specify the duty to work – so-called work behavior – do not require co-determination. These are measures with which the obligation to work is directly specified and demanded.
  • If a measure affects regulatory and work behavior at the same time, it depends on which regulatory purpose prevails. Whether work behavior without codetermination is affected is not judged by the subjective ideas that prompted the employer to take a measure. What is decisive is the respective objective purpose of the regulation. This is determined by the content of the measure and the type of operational events to be influenced.

Concrete The LAG then states the following on the disputed part of the code of conduct:

  • The specific regulation does not serve to coordinate the coexistence and interaction of the employees. It is exclusively aimed at adhering to the working hours.
  • In principle, the employees of the seaport cannot perform any work while smoking. Smoking outside of the scheduled breaks is (rather) an interruption of work.
  • The employer is not obliged to tolerate such work interruptions. Rather, the employees have to perform their work during the specified working hours. At the very least, they have to be ready to start work at any time as instructed by the employer.
  • The employer is not prevented from demanding the agreed work performance in the full amount of time. It may happen that, due to a fluctuating workload, it is not always possible to employ all employees continuously. However, this does not entitle smokers to leave their workplace and go to a smoking island, nor does it entitle other employees to pursue private affairs of any kind.
  • There is an obligation to work during the specified working hours, unless the employer voluntarily allows an additional paid or unpaid break in individual cases.

The LAG did not allow the appeal to the BAG.

Evaluation and Advisor Advice

The breaks and the (restricted) smoking ban were already regulated by collective bargaining or company regulations, so that the rights of co-determination in question (§ 87 Para. 1 No. 1 and No. 2 BetrVG) were either already eliminated (breaks: reservation of collective bargaining agreement according to the opening sentence of the Section 87 (1) BetrVG) or have already exercised (smoking).

The LAG has the separate order of the employer that smoking is only permitted during the specified breaks not considered to be subject to co-determination in the specific case. The decision is convincing – regardless of how you feel about smoking. there is but to take into account that this arises from the specific circumstances of the individual case revealed. Because in the present case it is not possible for the employees to smoke during the (ongoing) performance of the work due to the nature of the company and the associated risk of fire as well as the existing (restricted) smoking ban. Consequently, the decision of the LAG no blanket statement to the effect that the works council generally has no right of co-determination when it comes to regulating smoking breaks or the question of whether smoking is permitted during working hours. According to a (albeit somewhat older) decision of the BAG also includes the question of whether smoking is allowed during working hours and in the company, “in principle” (Note: in “legal language” this means: justified exceptions are possible) as accepted by the LAG) on the regulatory behavior subject to co-determination. This applies in any case if the work performance itself is not impaired by smoking (Note: as accepted by the LAG)so that work behavior free of co-determination is affected (BAG, judgment of 19.1.1999 – 1 AZR 499/98).

A decision made a few years ago by the LAG Düsseldorf (decision of April 19, 2016 – 14 TaBV 6/16) also fits in with this: If the parties to the company agree on a joint regulation that effectively prohibits smoking at the workplace, the ban on working hours is also added interrupting the regular breaks for the purpose of smoking in the designated smoking areas does not constitute an interference with the general freedom of action of the employees that would have to be specifically justified.

Also correct is the assumption (albeit only indirectly expressed) of the LAG Mecklenburg-West Pomerania that the works council via § 87 Para. 1 No. 2 BetrVG about the timing and duration of the breaks, not however about die Co-determine the introduction of paid breaks can. After the works council had referred to a corresponding company practice (paid work breaks that were used for smoking) in the course of the proceedings, the lower court (ArbG Schwerin, decision of June 24th, 2021 – 5 BV 1/21) even stated that that additional breaks without using the time recording system (Note: probably also meant: without knowledge/approval of the employer) would represent “working time fraud” at the expense of the employer. A few years ago, the LAG Nuremberg denied a corresponding claim based on operational practice (judgment of August 5, 2015 – 2 Sa 132/15).

Incidentally: Even insofar as smoking bans are part of the regulatory behavior that requires co-determination, the non-smoker protection laws of the federal states as well as those regulated in § 5 ArbStättV in favor of the employees apply to classic smoking Non-smoker protection to be observed and form a limit for co-determination. In general, “smoking at work””smoking during working hours” is much less common/possible nowadays due to the protection of non-smokers and also the changed ideas in society.

And that now also applies to E-Cigarettes and “vaping” at work? Without wanting to go into detail here as to whether e-cigarettes fall under non-smoker protection, jdf. In terms of works constitution law, there is no difference to classic smoking in the starting point. The present decision of the LAG Mecklenburg-Western Pomerania would also have to be the same in the case of comparable individual case circumstances with regard to e-cigarettes. In this respect, a comprehensive company “vaping ban” has been viewed more critically in comparison to the classic smoking ban due to a lack of concrete scientific knowledge on the harmfulness of e-cigarettes in relation to employees who do not “vape”.