Employees are entitled to a smoke-free workplace in restaurants and casinos…..the entrepreneurial freedom exception to the workplace ban does not apply.

Facts

An employee worked as head of roulette tables in a casino, which did not have a separate bar area.  People could smoke anywhere in the casino. The employee sued his employer because he was legally entitled to a smoke free workplace.

Decision

The court held under sec. 618 (1) German Civil Code (“BGB”) that rooms, devices or equipment must be set up by the employer in such a way that the employee is protected from danger to life and health as far as the nature of his business allows.  The employer must implement an overall ban or a restricted smoking ban for particular areas of the workplace pursuant to sec. 5 (1) 2 Regulation for Places of Employment (“ArbStättV”).

Although ‘entrepreneurial freedom’ is protected by sec. 5 (2) ArbStättV, the court considered that this entrepreneurial freedom was restricted by sec. 2 (1) no. 8 Protection of Non-Smokers Act (“NRSG”), which prohibits smoking at res-taurants.  The court determined that the casino was a restaurant, on the grounds that it had a bar.

The decision of the court in this instance, however, seems to be inconsistent with the following decision:

On 30 July 2008, the Federal Constitutional Court ruled that the smoking ban in so-called ‘one-room restaurants’ un-der the NRSG is incompatible with sec. 12 (1) GG and is therefore unconstitutional.  Despite this, the NRSG is not invalid, but a reforming law must be enacted on 31 December 2009.  Until that date at least, sec. 2 (1) no. 8 NRSG applies to safeguard individuals in restaurants against the dangers of passive smoking.

For further information or to discuss the issues raised, please contact Stefanie Andrelang (stefanie.andrelang@keller-menz.de) on +49 89 24 22 30 0.

This article was produced by, and re-produced with kind permission
of, our correspondent firm in Germany, Keller Menz Rechtsanwälte.  www.keller-menz.de

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