Dutch workers entitled to smoke-free conditions, court rules

A Dutch court has ruled that employers must guarantee that non-smoking staff have a working environment completely free of tobacco smoke. In a landmark judgment, the Breda district court upheld a postal worker's complaint that her exposure to tobacco smoke at the city's sorting office infringed her right to work in a smoke-free environment.

The court ruled that her employers were bound by the constitutional rights of citizens to protection of “physical integrity” and “health” to provide such conditions. They failed to satisfy this right under employment law, which obliges employers to ensure that workplaces cause “no harmful effects” on employees' health. The decision was based on recent advice from the Health Council, a government advisory body, that for carcinogens such as tobacco smoke there are no safe limits. This is the first time in the Netherlands that an employer has been taken to court to try to guarantee a working environment free of smoke, and the case has drawn comparisons with more advanced litigation in the United States.

Postal worker Nanny Nooijen had complained since 1993 about tobacco smoke in the Breda sorting office, where she works. Since 1990 she has experienced health problems, including asthma, because of an extreme sensitivity to tobacco smoke.

In 1997 her employers, PTT Post, created a separate non-smoking area and introduced smoking bans in the women's toilet and the canteen. But earlier this year Ms Nooijen took legal action to enforce a “completely smoke-free working environment.”

The court accepted that PTT Post had not satisfied its obligations. PTT Post has been given two weeks to introduce a complete smoking ban with the exception of a dedicated smoking room that must not cause non-smokers problems. Failure to comply will mean daily penalties of about £330 ($528).

The Asthma Foundation, which backed the action, believes that there could be thousands of similar cases and has set up a telephone hotline to register complaints. A recent national survey showed that 76% of employees experience problems with tobacco smoke. The foundation is calling for the judgment to be enshrined in a new law, currently before parliament, that aims to discourage smoking.

The UK antismoking lobby Action on Smoking and Health (ASH) believes this is the first judgment of a European court guaranteeing a smoke-free workplace. Its research manager, Amanda Sandford, said: “It is of major importance not just to the Netherlands but elsewhere. Passive smoking in the workplace is a hazard.”