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Such a refusal would be within the category of dismissal due to illegality. The employee is committing an unlawful act on the employer’s premises and by their actions would force the employer to commit an unlawful act.

Even though the employer is entitled to discipline the employe, they are still required to follow the statutory procedure.

Before deciding on the punishment, the employer should ensure that the employee understands the reasons that they are being required to stop smoking on the premises and given the opportunity to comply. If they refuse to do so then arguably the employer could treat it as gross misconduct if it is a wilful defiance of the order to stop smoking. By contrast, an employee caught smoking for the first time after the ban and promising not to do it again on the premises could be given a final chance to comply if the message hadn’t been clear from the 1st July.

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