Scottish employers may ban smoking in the workplace and some could even refuse to recruit smokers.

The suggestion follows the recent announcement of a ban on smoking in public places to be introduced in Scotland by early 2006.

The argument for the ban arises from the health risks associated with active and passive smoking.

But the decision may be considered discrimination even though there is currently no law against excluding smokers. Discrimination claims can only be brought on grounds of sex, race, disability, sexual orientation or religious belief.

It has been suggested that addiction to nicotine could count as a disability, which would provide grounds for discrimination claims to be brought against employers. But because nicotine addiction is seen to be self-inflicted, a disability claim would not stand up. A smoker refused employment could only claim disability discrimination if they could prove their application had been rejected due to other smoking-related illnesses such as lung or heart disease.

There are arguments to suggest Rastafarianism counts as a religious or philosophical belief under discrimination legislation. And some Rastafarians smoke marijuana for religious purposes. Therefore any employer who excludes a Rastafarian on the grounds of smoking could well face a claim for religious discrimination.