Council decision on smoking by personnel was implemented unlawfully
"When the City Board implements decisions made by the Council, the City's highest decision-making body, it must ensure that the measures taken correspond to the Council's decision,? the Deputy-Ombudsman points out. In her view, the City Board has neglected this duty.
Smoking guidelines did not correspond to Council's decision
The Helsinki City Council deliberated its "Smoke-free Helsinki" programme to prevent and reduce smoking in June 2010.
The City Board had recommended a complete ban on smoking. However, a majority of the Council took the view that a complete ban would led to unequal treatment of personnel depending on what kinds of working-time regulations applied to them. The decision that emerged was: "Smoking by City personnel is prohibited during working time. The prohibition does not apply to statutory rest breaks."
According to the guidelines issued by the Personnel Centre, smoking is not possible during working hours. Employees may not leave the workplace to smoke; smoking is possible only during a meal break, which is not part of working time, and during which an employee can leave the workplace. According to the guidelines, smoking is prohibited also during a coffee break, because this is counted as working time and an employee may not leave the workplace during it.
It was also the Council's intention that the smoking ban would be of the character of a recommendation and that there should not be an effort to achieve it through compulsion. However, the Personnel Centre's guidelines constitute an order, with which sanctions are associated. The most serious of these is the warning procedure ? a preparatory action that precedes dismissal.
Significant decisions are a matter for the Council
Deputy-Ombudsman Sakslin points out that, according to the Local Government Act and the City's rules of procedure, significant decisions concerning the arrangement of administration are a matter for the City Council. A decision of this kind was involved when the Smoke-free Helsinki programme was being deliberated, because it applied to a total of 39,000 City employees. The City Board and the Personnel Centre did not at this stage have discretionary power with respect to the contents of the Council?s decision.
With respect to the permissibility of prohibiting smoking, the Deputy-Ombudsman refers to the Constitutional Law Committee's statements concerning the Tobacco Act and an earlier position adopted by the Ombudsman.
Additional info will be provided by Senior Legal Adviser Ulla-Maija Lindström, tel. +358 (0)9 432 3355.