Smoke signals: what the smoking ban means for employers

Step through the historic gateway from London’s Fleet Street into Middle Temple Lane and you find yourself in the enclosed world of the Temple. This is where, traditionally, barristers have their chambers. Even those of the fictional Rumpole of the Bailey are there to be seen near the Temple Church.

The Inns of Court are not stuck in a time-warp, however. They move with the times, whether they want to or not.

The smoking ban in workplaces comes into force from 1 July and the holders of the ancient offices of under-treasurer of Middle Temple and sub-treasurer of Inner Temple, therefore have a new role. Under the Smoke-free (Premises and Enforcement) Regulations 2006, they will become the smoking police for their respective Inns. They, like local authorities and district councils, will have the right – and the duty – to enforce the law which requires not only a ban on smoking in all workplaces, but the placing of non-smoking signs.

It is not just the esoteric world of the law that that is affected. The ban extends to every sort of workplace and for good measure, pubs, clubs and restaurants.

Premises that allow smoking will be liable to a fine, as will individuals who light up in defiance: a £50 penalty ticket can be issued on the spot, probably the very one where their dog-end is stubbed out, to avoid summary proceedings. The only noticeable exemption that is of any significance to the nation is that of the Royal Palaces. Thus, our elected Members of Parliament will be able to light up or endure passive smoking as the case may be, in the bars of the Palace of Westminster which is designated as a Royal Palace. .

The law

There is no messing about with the new law. The Health Act 2006 opens with a bang: Part 1, Smoking; Chapter 1, Smoke-free premises, places and vehicles. ‘Smoking’ refers to smoking tobacco or anything which contains tobacco, or smoking any other substance. So, that’s the end of ‘herbal cigarettes’ as a bypass to the ban, particularly as the Act goes on to describe smoking as being in possession of lit tobacco (no excuse to say, ‘I didn’t do nuffink wrong, I was just holding someone else’s ciggy’) or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked. No getting around the ban by setting fire to a pile of tobacco dust in the office pencil-sharpener shavings and breathing over the leafy pyre.

Workplaces and premises open to the public (which can also be workplaces if staff operate them) are to be smoke-free if the premises are enclosed or substantially enclosed. There are some exemptions, which is unfortunate for staff working in such places. These include where a person has their temporary or permanent home: hotels, care homes, prisons and the like.

Smoking must not be permitted in company cars used by more than one person. Indeed, compliance is taken so seriously that breach of the legislation amounts to a criminal offence, which can only be defended on the basis that the smoker did not know of the ban. As the law also requires non-smoking signs to be placed so that they are clearly visible (and if they are not, there is an offence of failing to prevent smoking in a non-smoking place), there could be difficulties in establishing that defence. The law provides that “it is the duty of any person who controls or is concerned with the management of smoke-free premises to cause a person smoking there to stop smoking”. That wording allows for delegation of responsibility to managers.

If the employee objects

The long and the short of it is that smoking is completely off the work menu. No more designated smoking rooms and no kind explanations are needed – lighting up at work is prohibited.

The cry from the addict’s heart that he or she needs special dispensation need not be heeded: the Disability Discrimination Act 1995 specifically excludes nicotine addiction as a disability. Furthermore, working late and smoking when no-one else in the office is also not allowed. Employers should be aware that there has never been a right to smoke at work.

Way back in 1992, when the six-pack of health and safety regulations were coming into force, companies were preparing for risk assessments and taking steps to reduce health hazards. Smoking was an obvious target. The Greater Glasgow Health Board consulted with its employees and gave due warning of an incoming smoking ban. One of the employees, a dedicated smoker, said that the ban was a breach of contract. In the case that she brought, claiming constructive dismissal (Dryden v Greater Glasgow Health Board [1992] IRLR 469) the court held:

“There was no specific implied term in [D’s] contract of employment to the effect that she would be entitled to smoke during working hours. There was no basis for holding that there was any implied term to the effect that smoking would continue to be permitted either generally or in [her] particular case… An employer is entitled to make rules for the conduct of employees in their place of work within the scope of the contract… there may well be rules which are unwelcome to some employees but welcome to others and a rule banning smoking might be an example of the kind. Where a rule is introduced for a legitimate purpose, the fact that it bears hardly on a particular employee does not in itself justify an inference that the employer had acted in such a way as to repudiate the contract with that employee.”

Allowing people to smoke at work created a workplace hazard that could have been avoided. It was fairly predictable that there would be at some time be a court case about a breach of the implied term in a contract of employment that the employer would not injure the employee’s health by allowing smoking in the workplace. In Waltons & Morse v Dorrington [1997] IRLR 488, the employee was constructively dismissed when her employer, a firm of solicitors, failed to protect her from passive smoking when she was working overtime and senior people in the office all lit up as soon as their regular working hours were over.

Good employment practice

The arbitration service Acas website has some useful tips on how to deal with the sort of issues that might arise if smoking has been permitted until now.

It advises giving advance warning of the change but, unfortunately, suggests that employers could allow their staff designated smoking breaks, permitting them to indulge their habit outside the building. This tends to have a disruptive effect on the non-smoking members of staff who do not take frequent or extended breaks.

Acas appears to support the notion of a defined break with a policy which provides explicitly that abuse of the work-break system will be a disciplinary issue. Employers should be aware that there are fines for failing to deal with the legislation properly: £1,000 for permitting a person to smoke; £2,500 for failing to take active steps, including no-smoking posters, to enforce the ban.

Although Acas suggests that smoking at work should be expressed as a disciplinary issue, an employer who does not create a smoking policy but instructs his staff that they may not smoke can bring disciplinary proceedings on the grounds of failing to obey a reasonable management instruction.

Another issue addressed by Acas is the question of the visitor to the premises who insists on smoking. It might be hard to do so but, with the large banners declaring a smoke-free zone, there is the force of the law behind the request for someone to put out their cigarette.

The Acas advice contains the suggestion that practical help can be obtained from the NHS Quitline or – three cheers – occupational health services. As a combination of human resource management and occupational health input, it is important to make people understand that smokers do not have rights but non-smokers do. There is nothing in law to provide any kind of facility to enable people to smoke outside and no reason in law to require providing work-breaks to accommodate nicotine addiction. Having said that, it is well recognised that many smokers either cannot give up or do not want to.

The National Institute for Clinical Excellence published guidance in April suggesting that the most economical way to deal with smokers is to give them paid time off to allow them to attend NHS clinics which are only open during working hours to help them quit. Employers are outraged by the proposal but non-smokers could be even more annoyed. It is arguable that smoking is a lifestyle choice and that time off for smoking-control lessons will create even more concerns about smokers’ productivity. These concerns could, perhaps, be alleviated by the smokers making up time taken out of work either to smoke or be cured of the habit. Otherwise, why not give paid time off for weight-watchers. Or it might make it worth-while to take up smoking to get the time off to kick the habit.

Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn, London.

Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.

Any enquiry about this article may be made to Joan Lewis at Telephone 020 8943 0393.

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