Which legislation says that smoking is going to be unlawful?
The Health Act 2006 is the main legislation although details of what is and is not allowed are fleshed out in secondary legislation (see below).
Is smoking totally banned in public places and the workplace?
Areas opened to the public including workplaces which are “enclosed” or “substantially enclosed” must be smoke free unless they are specifically exempt by law.
What is the meaning of an “enclosed” area?
The Smoke-free (Premises and Enforcement) Regulations 2006 state that premises are “enclosed” if they have a ceiling or roof and, except for doors, windows and passageways, they are wholly enclosed either permanently or temporarily. This will capture restaurants, pubs, work areas including reception areas, atriums, lobbies, offices, meeting rooms, corridors, stairwells, toilets, lifts etc.
What is the meaning of “substantially enclosed”?
Premises are “substantially enclosed” if they have a ceiling or roof (fixed or moveable) and less than half of their perimeter consists of openings in the walls (excluding windows, doors or openings) which can be shut. This could potentially include a marquee, a room with a skylight, conservatories, annexes or external shelters.
Does the ban extend to company vehicles?
Yes, if the company vehicle is used by more than one person.
What are those exempt areas where smoking will still be allowed?
The Smoke-free (Exemptions and Vehicles) Regulations 2007 permit smoking in limited enclosed areas. These include residential accommodation, hotel bedrooms, hospices, adult care homes, detention or interview rooms, research and testing facilities, laboratories and cover actors on stage.
Must an employer erect “No Smoking” signs?
Yes, the Smoke-free (Signs) Regulations 2007 requires an A5 size sign to be displayed at each entrance to smoke-free premises containing the words “No smoking. It is against the law to smoke in these premises”. Anyone with management responsibilities for a smoke-free vehicle must also ensure that at least one no-smoking sign is displayed in a prominent position in each compartment of its vehicle.
What happens if an employer does not comply with the smoking ban?
Under the Smoke-free (Penalties and Discounted Amounts) Regulations 2007, the following fines will be imposed:
Non- display of no-smoking signs – up to £1000.
Failure to prevent smoking in a smoke-free place – up to £2500
Different rates apply if the fixed penalty procedure is used.
What if employees smoke in a smoke-free area?
They could be fined up to £200. Breaking the law can also be treated as an act of gross misconduct within the employer’s disciplinary policy.
What if clients or visitors to the company’s premises breach the smoking ban?
The company has an obligation to police the smoking ban or risk committing a criminal offence. Visitors and clients should be asked to respect the “No Smoking” sign or, where appropriate be directed to a “smoking shelter”.
Who else is going to police the ban?
The Smoke-free (Premises and Enforcement) Regulations 2006 provides a list of designated enforcement authorities. These include a unitary authority, district council and London Borough Council. A telephone line (0800 587 1667) will also be in operation to allow members of the public to report potential breaches of the law. The matter will then be referred to the local council.
What about the rights of smokers?
There is no legal right to smoke at work although workers are entitled to a rest break of at least 20 minutes for 6 hours of work. Neither is an addiction to nicotine recognised as a “disability” under the Disability Discrimination Act 1995. If smoking is going to be allowed on and after 1 July 2007, employers will have to provide “smoking shelters” for their employees. They will need to ensure that such external shelters are not “substantially enclosed”.
How about employees who have to work in a smoky environment as part of their work eg chambermaids in a hotel or carers in a hospice?
Employers are still under a duty to protect the health and safety of their employees under the The Health & Safety At Work Act 1974, The Management of Health and Safety at Work Regulations 1999 and The Workplace (Health, Safety and Welfare) Regulations 1992.
This means that employers must carry out risks assessments for employees who may be exposed to passive smoking – particularly those who are pregnant or who suffer from asthma, respiratory or heart ailments. Potential measures against the risks of passive smoking include proper ventilation of smoking areas, airing a smoking room before cleaning, staff rotations and the provision of breathing masks/filters.
If an employer fails to take steps to ban smoking, can they be taken to the tribunal?
Employees can raise grievances and claim constructive dismissal if their working conditions are hazardous. There are also risks of whistleblowing and personal injury claims.
What should employers do now?
They should consult with employees about the smoking ban via a task group made up of smokers and non-smokers. Some employers offer counselling, access to support groups and limited financial assistance (Nicotine Replacement Therapy) to help employees quit their habit. A policy decision also needs to be taken as to whether tobacco products should be sold in staff canteens or otherwise promoted by the organisation.
When developing a smoking policy, a balance is struck between smokers and non-smokers although the HSE recommends that rights of smokers should take precedence. Part of the process of implementation will involve creating a sense of awareness amongst the workforce on the effects of passive smoking and the implications of breaking the smoking ban.
Update the disciplinary policy and don’t forget those vital A5 signs!
What should we consider when drafting a Smoking At Work policy?
Acas has produced some useful guidelines. You can also consult the Employers’ Law policy clinic on what to do when the ban on smoking in public places in England comes into force.
Julian Yew is an employment solicitor and Head of the Hotel & Leisure Group at Wedlake Bell
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