Unclouding the issue

With a government code of practice in the pipeline, smoking is rising up the
health and safety agenda.  But at
Denbighshire County Council the issue has proved more controversial even than
redundancy policies, reports Bob Singfield

Since local government reorganisation in 1996, Denbighshire County Council
has seen the introduction of a range of personnel policies and procedures to
replace the plethora we inherited from three separate authorities. In 1997
selective redundancy was unfortunately an important issue, but discussions with
councillors and negotiations with the trade unions were pragmatic, and despite
a wide range of views and expectations, we introduced a procedure which is
demonstrably fair and protects the business needs of the employer. More
recently we have revised our approach to early retirement payments and
following consultation we reduced pension enhancement. But with the smoking
issue, reasonable debate has so far proved impossible.

In 1996, the council introduced a tolerant "Smoking at Work"
policy with appropriate restrictions which allow smoking in designated areas.
As each of the three predecessor authorities had had smoking restriction
policies of one sort or another problems were not anticipated. In reality however,
practice still ranges from strict "no smoking" – in new buildings,
where official policy has been ignored and designated smoking areas were not
even considered – to the other extreme where some site managers simply allow
smoking, usually because they are smokers themselves.

All attempts to introduce uniformity have failed. The issue appears
insufficiently important to enforce and yet too important to compromise on.

The negotiation process is extremely protracted. First I have to draft a
policy and convince senior management why it is needed, then negotiate with the
trade unions via a working group, then debate at the joint consultation
committee with a selection of councillors and trade union representatives. If a
decision is reached this has to be approved by council. Only then can the
policy be introduced. There is another hurdle for education establishments, as
the governors are perceived as the employers and each school determines its own
policy – generally based upon county advice. At every stage two distinct groups
have formed, which hold diametrically opposed views and lack any inclination to
move forward. Debate always concludes with no decision being reached.

Hoping for an objective debate about the health risks of passive smoking, I
referred the matter to the Health and Safety Committee, but even they ignored
the agenda and debated individuals’ rights rather than discussing the
implications of smoking at work.

Very few employees smoke, but it seems that a disproportionate number of
councillors and employee representatives are either "champions of the
few" or are protecting personal interests as they are smokers themselves.

The HSE guidance in Passive Smoking at Work reinforces the need to perceive
an employee’s entitlement to a smoke-free environment as of greater importance
than the personal freedoms of others to be free to smoke, even where the
smokers are in the majority. With the introduction of the planned HSC Approved
Code of Practice, employers will be obliged to address the smoking issue and
will have to determine a policy which controls exposure. Although it will not
be an offence to fail to comply with the code, non-compliance will have to be

The code will therefore require employers to find a practical solution.
There appear to be just two options: either introduce a smoking at work policy
which accommodates the needs of smokers but includes sufficient restrictions to
protect non-smokers; or introduce a no smoking policy which in effect bans
smoking at work.

My view is simple: employers should ban smoking at work as this provides an
unambiguous response. Initially it is the cheapest option, but most importantly
it is the safest option. It is safe with regard to health – arguably the major
goal – and reduces the likelihood of litigation under the Health and Safety at
Work Act 1974. It may, however, be seen as an infringement of civil liberties
and might fall foul of human rights legislation. The introduction strategy is
particularly important as implementation without due consideration might be
seen as a breach of contract and could result in a resignation followed by a
claim to the employment tribunal of constructive dismissal.

The alternative is to introduce a smoking at work policy, but this creates a
raft of problems: good practice suggests the provision of "designated
smoking areas", but these take up potentially valuable office space, they
require initial investment in matching facilities to perceived usage and
ongoing investment in maintenance and cleaning.

A smoking den for two or three users will prove woefully inadequate if usage
doubles, consequently designated areas have the potential to become
particularly unpleasant and dirty. It should not be overlooked that the cleaner
is also entitled to a safe working environment; if the cleaner happens to be a
smoker, these duties may be mutually acceptable, but if he or she quits
smoking, what then? Generally, however, where the employer has the inclination
to allow smoking breaks and provide suitable facilities, acceptable
restrictions are achievable.

This takes care of responsibilities towards the non-smokers by keeping them
away from the problem, but in my experience some non-smokers will seek
comparable provisions and request non- smoking breaks.

The deliberation is too heavily focused on the needs of a small minority of
employees rather than the well-being of the majority and the welfare
obligations of the employer. My role is to protect the perspective of the

Any employer which tolerates smoking at work must rigidly police the issue
or risk a claim for not providing a safe working environment. Any employer
which imposes a ban risks a claim for restricting civil liberties. Despite
considerable discussion over many years, I have not heard any argument in
favour of smoking at work other than personal freedom claims. The employer must
determine which is perceived as the greatest threat – the risk of a non-smoking
employee contracting lung cancer and claiming that the workplace, and nowhere else,
brought him into contact with an unreasonable level of second-hand smoke is
perhaps the greatest threat, but there are others.

When employers introduce smoking restrictions but fail to provide designated
areas, smokers tend to congregate around entrances. Any employer concerned
about its public image should not overlook this. Smokers can even be spotted at
the entrances to the cancer units of major hospitals – with visitors having to
run the gauntlet of nurses and patients taking a smoking break. What message
does this deliver? Is it compatible with the hospital’s purpose? Will smoking
at the entrance to the council offices project the desired image to council tax
payers, or does it threaten a bad press?

The social responsibilities of local authorities differ from those of most
employers. County councils have responsibility for schools. Smoking poses
serious risks to the health of school children so it is arguable that councils
should set a good example and ban smoking completely.

Recent surveys suggest that the most significant group of new smokers are
teenage schoolgirls. These are the next generation of young mothers, and as it
is well established that smoking during pregnancy is potentially harmful to the
unborn baby, a serious effort to discourage smoking is easily justified. I see
that as a laudable goal which should not make those in favour feel defensive.

In addition to schools and other traditional local authority employment
sites, this local authority has a wide range of employment bases including
residential homes, bars and theatres. Consequently employees’ duties and
contracts vary and the issue is complex. But if the council is to be perceived
as a "single employer" it should have consistent policies wherever
possible. A complete ban should therefore apply across the board as the basis
of policy.

The case against smoking is overwhelming. It kills 120,000 people every year
in the UK. Passive smoking is therefore a real issue for the workplace. The
proposed Health and Safety Commission code is to be welcomed if it assists in
overcoming the reluctance to face the simple fact that smoking at work is bad
for employees and employers alike.

Bob Singfield is principal personnel officer (policy/employee relations)
at Denbighshire County Council

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