Can you see any problems arising from the ban?
Neil Rafferty There’s likely to be a few problems with employee drivers. Someone who’s driving a delivery van or truck may have nobody beside them all day, so if they smoke a cigarette, it’s not going to be hurting anyone but them. It is a totally victimless situation, yet they will still be breaking the law. And from 1 July, HR departments will somehow have to discover a way of enforcing and dealing with this.
Chris Owens People need to be reassured that these changes are not going to lead to rioting in the streets. In all the places where smoke-free legislation has been implemented, it has seen extremely high levels of compliance. This legislation has high levels of support among the general public, and a lot of people will see it as an ideal opportunity to quit smoking. In time, the legislation may even help to reduce the numbers of people smoking overall.
What steps should employers take to prepare for the ban?
Neil Rafferty Obviously firms have to consider how they’re going to treat smoking employees and whether they want to adopt a blanket ban or try to give them an outdoor facility – some sort of shelter so that smokers don’t end up huddling around the front door. It’s likely that many employers will simply make it as difficult to smoke as possible.
Chris Owens The best way of addressing this issue is to make it part of a workplace health strategy, and just one strand of a policy of looking after your staff.
What are the initial effects of the ban likely to be?
Neil Rafferty If you own a pub, then your takings are going to go down by about 10%. Own a bingo hall, and you’ll struggle to stay in business for the first year or so. Other businesses will encounter lots of little individual problems caused by friction with staff about where they can and can’t smoke. Lots and lots of low-level individual cases like this will eventually start to interrupt the smooth running of the business.
Chris Owens Large numbers of people are already protected from second-hand smoke in the workplace. There are, however, a significant number who are not. A particular group who we know are at considerable risk of harm, due to their workplace exposure to second-hand smoke, are bar and nightclub workers. This legislation will have a big effect on their health.
What impact do you see it having in the long term?
Neil Rafferty Businesses may start to lose good staff who don’t like being nagged about their smoking all the time. The effect this may have on the bottom line is obvious. At the same time, HR departments in firms with a high visibility will have to deal with an increase in calls about van and truck drivers – as will the local authority and police. Rather than focusing on their job, all sides will be forced to deal with a law that’s almost impossible to enforce, putting a big strain on resources.
Chris Owens Smoking-related diseases tend to hit people later on in life. At the same time, the business world is asking people to work for longer before they retire. So it’s highly probable that it’ll have more impact on them in the long run. As a result, it really makes good business sense to invest in programmes that help employees to quit smoking now.
Will the smoking ban actually be a good thing for staff?
Neil Rafferty Common-sense tells you that smokers are just as productive as any other employees. In fact, having a break from your screen every hour can actually improve your work and concentration as it gives your mind a five-minute break and offers a chance to relax and think about your work away from your desk. So in many ways, the smoking ban will actually make people worse at their jobs.
Chris Owens Organisations where staff work mainly in the open air may feel that they are not affected by the legislation and therefore do not need to support their smokers to quit. It is, however, still worthwhile for these businesses to encourage and support their staff to quit, because if they contract a smoking-related disease in the future, there are big implications for the effectiveness of the business itself. So there are big reasons to help your employees to quit now.
Comment from other legal experts
Tim Scott, partner, DWF
The ban could fuel resentment between smokers, who will now be unable to smoke in the building, and non-smokers, who may resent them taking time out for smoking breaks. Companies should try to forestall these problems by agreeing a policy that has the support of all staff. However, they need to make it clear that any agreed breaks are a privilege, not a right, and abuse will result in disciplinary action. It might be a good idea to specify their time and frequency too, and consider providing smoking shelters away from other areas. Employers also need to ensure a no-smoking policy is in place which spells out the arrangements that have been agreed, and gives guidance on how managers should handle smoking in the workplace, and what disciplinary action might be taken. Having a clear policy that complies with the law will ensure everyone knows where they stand and minimise the risk of prosecution.
Rachael Heenan, partner on the employment team, Beachcroft
Unless employers execute the regulations in a sensitive and constructive way, they could quickly find themselves in hot water. For example, having to report their own employees to the enforcement authorities, or at worst, even being accused of constructive dismissal or harassment. Employers will also have a duty to protect their employees and provide a suitable and safe environment for employees to smoke – not simply turning a blind eye if they smoke in a dangerous environment such as a lorry park with no pavements. Employers should already be consulting with staff to ensure that appropriate policies and procedures are introduced on or before 1 July. The smoking policy should outline why the policy is in place, when it will take effect, and clearly clarify whether smoking will be permitted outside, and where. It should be made clear that non-compliance with the policy will be regarded as a disciplinary offence. The rules on company vehicles and home working should also be clearly stated. Employers should also monitor the effectiveness of the policy, review the policy regularly and include procedures of resolving complaints and disputes about smoking.
Stephanie Dale, partner and head of the employment department, Stevens & Bolton
If employers don’t take reasonable steps to prevent breaches of the no-smoking laws, they may be committing a criminal offence and could be liable to a fine of up to £2,500. So it is essential to consider how they’re going to deal with employees who fail to observe a no-smoking policy. The procedure that will be followed and the likely sanctions should be set out in a disciplinary policy, and this should be clearly communicated to all employees. Although this sounds simple, care should be taken as smoking can be an addiction and it could, in some cases, be argued that it should be treated as an illness. Treating breaches automatically as misconduct may, therefore, not be appropriate. However, treating it as an illness may entail significant time and cost to the employer. Providing support to employees who wish to give up smoking may help to reduce the risk of non-compliance, and show that a fair procedure was followed in cases where disciplinary action is ultimately required.
To avoid being burnt by the smoking ban, employers in England need to comply with the following:
- The smoking ban will apply to all enclosed or substantially enclosed public places used as a place of work by more than one person.
- Structures will be considered enclosed if they have a ceiling or roof and more than 50% of the perimeter is enclosed. This could include common smoking haunts such as bus stops, bike sheds and porches.
- Homeworkers are covered by the ban if they have an area that’s used exclusively for work by more than one person, or visitors are received in the area.
- Work vehicles used by more than one person are covered. This includes company cars that are used privately at the weekends. All vehicles have to display a ‘No Smoking’ sign.
- The driver of a company vehicle has a legal responsibility to stop anyone from smoking inside. This applies to any person with management responsibility for company vehicles.
- It will be a criminal offence for employers to let people smoke on their premises. There are also offences relating to the failure to display no-smoking signs where these are required by law.
- The smoking ban covers tobacco, cigarettes, pipes, cigars and herbal tobacco.
Up in smoke
From 1 July, smoking will be outlawed from all workplaces, work vehicles and forms of public transport in England. For some, this is a golden opportunity for large-scale social engineering and the possibility of defeating the evil weed.
Others simply see it as government meddling, insisting that adults should be allowed to make up their own minds whether to smoke or not. To them, it is a case of yet more unnecessary red tape.
But regardless of what side of the philosophical debate you sit, for employers, only one thing matters: complying with the law. And to do this, firms have to get their anti-smoking policies in order now.
Fail to put the correct measures in place, and firms may be found guilty of breaking the law and forced to pay hefty fines in a court.