Smoking breaks are not subject to worker participation

Thursday, 12.05.2022

A Regional Labour Court has ruled on a dispute between a logistics company and its works council over smoking breaks.

The company provides logistics services in a seaport. Large quantities of timber and timber products are handled in this port. There have been recent fires in the wood processing companies around the port. The breaks of the employer’s employees are regulated in detail in a collective agreement for each shift. Smoking is only allowed on the company premises on so called smoking islands. In addition, the employer instructed its employees in a letter to smoke only during the breaks prescribed by the collective agreement. Employees were asked to countersign the letter and would have to expect consequences if they refused.



The works council then demanded before the labour courts that the employer withdraw the instruction and refrain from doing so in the future. The works council argued that the employer had to obtain the works council’s consent before doing so. Accordingly, the smoking ban was unlawful without the consent of the works council.

Right of co-determination on smoking breaks exclusively concerns working time

Pursuant to section 87(1)(1) of the Works Council Constitution Act (BetrVG), the works council must be involved in regulations concerning “the coexistence and interaction of employees in the workplace”. However, the works council is not entitled to have a say in regulations or instructions that specify the employees’ work duties or behaviour. If an employer’s measure affects both areas at the same time, it depends on which purpose of the regulation objectively prevails.

In this case, the Regional Labour Court of Mecklenburg-Western Pomerania ruled that the employer’s order exclusively concerned work behaviour. Therefore, the works council cannot have a say in this matter. The order is exclusively directed at the observance of working hours. While smoking the employees of the seaport cannot, in principle, perform any work. Accordingly, smoking constitutes an interruption of work. The employer can prohibit such interruptions of working time even without the involvement of the works council.

LAG Mecklenburg-Western Pomerania, decision of 29.3.2022, 5 TaBV 12/21