Employees are entitled to a smoke-free workplace in restaurants and casinos.....the entrepreneurial freedom exception to the workplace ban does not apply.
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.
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.
This article was produced by, and re-produced with kind permission of, our correspondent firm in Germany, Keller Menz Rechtsanwälte. www.keller-menz.de
Content is for general information purposes only. The information provided is not intended to be comprehensive and it does not constitute or contain legal or other advice. If you require assistance in relation to any issue, please seek specific advice relevant to your particular circumstances.