Policy clinic: what to do when the ban on smoking in public places in England comes into force

Employers in England will be forced to make workplaces smoke-free by 1 July 2007. Rachael Heenan and Jennifer Wotherspoon outline the key considerations.

The Health Act 2006 will introduce a complete ban on smoking in public places in England by July 2007. A similar ban has been in force in Scotland since March 2006 and is intended to take effect in Wales and Northern Ireland on 2 April 2007.

Three sets of draft regulations have now been issued by the government to implement the proposal:

  • The Smoke-Free (General Provisions) Regulations
  • The Smoke-free (Exemption and Vehicles) Regulations
  • The Smoke-free (Penalties and Discounted Amounts) Regulations.

The legislation heralds the end of a series of well-publicised disputes over the scope of the ban, between MPs from all of the main political parties. The motivation behind the measure is clear: second-hand tobacco smoke is a major cause of heart disease and lung cancer among non-smokers who work with people that smoke. In fact, it has been estimated that around 700 people die each year as a direct result of second-hand tobacco smoke in their workplace – the ban is designed with this statistic in mind.

What is prohibited?

The smoking ban will apply to all enclosed or substantially enclosed public places and premises used as a place of work by more than one person. Vehicles used for work will also be included but there will be an exception for vehicles that are only ever used by one person with no passengers.

Premises will be considered to be enclosed if they have a ceiling or roof and, except for doors, windows or passageways, are wholly enclosed on a permanent or temporary basis. An area will be deemed substantially enclosed if it has a ceiling or roof and more than 50% of the area is covered.

Potentially, this could include bike sheds, porches and other common smoking hangouts. Employers with such existing facilities will need to check carefully that they are compliant with the new legislation.

The government has indicated that the list of smoke-free areas may be extended in future to cover other areas that may not fall strictly within the definition of enclosed or substantially enclosed, but where there is a risk of harm from second-hand smoke due to the close grouping of people together. Examples might include bus shelters, sports stadia and entrances/exits to public buildings or workplaces.

The ban covers tobacco, cigarettes, pipes and cigars, and herbal tobacco. These products become prohibited as soon as they are lit, even if the person is not smoking at the time.

Employers’ obligations

It will be a criminal offence for those who manage smoke-free premises to fail to stop people smoking. Employers will also be required to take reasonable steps to ensure that the restrictions are complied with. This is likely to include an obligation to take disciplinary action, potentially including dismissal, where an employee acts in breach of the legislation.

An employer will have a valid defence to such a claim if:

  • it takes reasonable steps to prevent smoking
  • it does not know, or could not be reasonably expected to know, that there are people smoking
  • it can show other grounds why it was reasonable not to fulfil its duty.

Employers will also be under a duty to ensure that compliant ‘no smoking’ signs are displayed in their premises. These signs should be prominently visible at all entrances to the premises and in conspicuous areas, including toilets and staff rooms. Guidance indicates that the sign should measure at least 280mm by 200mm, it should display the international no-smoking symbol and should state that it is illegal to smoke on the premises.

A defence will be available to an offence of failing to display such a sign, where an employer would not have been expected to know that the sign had been removed – for example, if removed by vandals.

People who smoke in a smoke-free area will also commit a criminal offence.

The government has indicated that enforcement will be non-confrontational, fair, proportional, consistent and confined only to serious breaches. It is anticipated that local authorities will be primarily responsible for enforcement.

As employers have a general duty to protect their employees and provide a suitable and safe working environment, it is likely that non-enforcement of the ban by an employer could lead to a constructive dismissal claim by a disgruntled employee.

What is allowed?

There is a partial exemption under the new regulations to cover the situation where a person’s workplace is also their, or somebody else’s, home. This includes residential homes, long-term residential mental health units, prisons, offshore platforms and hospices. In these places smoking will be allowed in either a bedroom or a designated smoking room. However, there are strict conditions, which state that it is only residents and their guests that will be permitted to smoke, and employees will not be able to smoke on the premises (except on offshore platforms, where smoking outside poses an obvious health and safety risk).

There will be no requirement for private residential dwellings to be smoke-free and there will be a total exemption to cover designated hotel bedrooms or employees visiting people in their own homes – for example, cleaners, healthcare workers or nannies. However, parts of a private residence that are open to the public, such as common entrance foyers, will be required to be smoke-free.

Employers who employ staff to undertake tasks in residential homes will need policies on how smoking during residential visits should be addressed. Arguably, these workers have just as much right to be protected from second-hand smoke as any other worker. Employers who do not adopt effective policies in this area could potentially face legal action under health and safety legislation if an employee suffers harm as a result of second-hand smoke.

What should employers do now?

Employers will need to implement appropriate procedures to ensure that employees and others refrain from smoking and are aware of their obligations. Employers should consult with staff now to ensure that the procedures can be introduced before the ban takes effect.

Rachael Heenan is a partner and Jennifer Wotherspoon a solicitor in the employment team at law firm Beachcroft

What to include in a smoking policy

  • Explain why the policy is in place.
  • Clarify when the ban will take effect.
  • Explain the scope of the ban and clarify whether smoking will be permitted outside.
  • Specify which vehicles will be required to be smoke-free.
  • Explain how staff will be informed of the ban Ð consider training and induction procedures.
  • If staff are likely to work in residential premises, ensure that appropriate procedures are in place to effectively address the risk of passive smoking.
  • Include procedures for monitoring the effectiveness of the policy and for reviewing it.
  • Include procedures for resolving complaints and disputes about smoking.

Employers should also take the opportunity to review their disciplinary policy and introduce a new sanction for failure to comply with the smoking policy.

Maximum penalties

  • ‘No smoking’ sign offences (summary conviction and a fine of up to £1,000 or a fixed penalty notice of £200)
  • Offence of smoking in a smoke-free place (summary conviction and a fine of up to £200 or a fixed penalty notice of £50)
  • Offence of failing to prevent smoking in a smoke-free place (summary conviction and a fine of up to £2,500)

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