The Commons’ recent vote to impose a smoking ban in all enclosed public places marks the end of a series of well-publicised disagreements between MPs of all parties as well as between members of the Cabinet itself.
The ban set out in the Health Bill may seem pretty straightforward. However, we are yet to see the flesh that regulations designed to apply it to the real world will put on the Bill’s rather ill-defined bones.
The current interpretation is summarised below, but whether the regulations will agree is open to debate. We will just have to wait and see.
Where will the ban apply?
All enclosed or substantially enclosed public places and workplaces, such as pubs, bars, restaurants, factories, offices, public transport and, in certain circumstances, vehicles used for work.
Regulations may in due course identify additional smoke-free places that are considered to pose a risk of inhaling second-hand smoke, such as sports stadiums, entrances and exits to workplaces, and bus shelters, for example.
What does ‘substantially enclosed’ mean?
Regulations will define this term, but the government’s current plan is for the ban to apply to partially covered venues – the open areas of which make up less than half their total area. So, if 40% of a pub’s garden area was covered, for example, then the ban would not apply. But if 60% of it was covered, then the ban would apply.
Where will the ban not apply?
Outdoors, private homes, places akin to homes, such as rooms in hotels and hostels, care homes, prisons and oil rigs, and other places of work, such as delivery vans owned and driven by one driver.
When will the ban take effect in England?
What about Scotland, Northern Ireland and Wales?
A total ban is due to take effect in Scotland on 26 March, with Northern Ireland following suit in April 2007. The Welsh Assembly will decide whether to implement the ban in Wales. A ban is already in force in the Republic of Ireland.
What duties will the Bill impose on employers?
The Bill will make it an offence for those who control or manage smoke-free premises to fail to stop people smoking on them. An employer will have a valid defence if it takes reasonable steps to prevent people smoking; does not know or cannot reasonably be expected to know that they are smoking; or can show other grounds why it is reasonable not to fulfil its duty.
If employers occupy or manage smoke-free premises, they will also be under a duty to ensure that compliant no-smoking signs are displayed. In due course, regulations will specify how and where signs are to be displayed. Again, a defence will be available for those who, for example, could not have been expected to know that signs previously in place had been removed by vandals.
Employees and visitors will be under a duty not to smoke on smoke-free premises or in a smoke-free vehicle. Offenders may be given
a penalty notice or, if they refuse to pay, may be prosecuted.
Regulations will set the level of fines for these and other offences provided for in the Bill.
What should employers do?
Employers will need to implement appropriate procedures to ensure their employees and others who access their premises refrain from smoking. These procedures will need to be in place and communicated to the workforce and visitors alike in time for the ban taking effect.
Once the ban is in force, it will not be open for an employer to say, for example, that because its staff were informed of the new law via noticeboards, those who continued to use an old smoking room for its original intended purpose only have themselves to blame when they are charged with a criminal offence.
Employers should approach the smoking ban in a similar way to how many of them enforce the wearing of personal protective equipment, for example. In other words:
- Identify all the areas where smoking will constitute an offence.
- Alter the existing staff handbook or relevant procedures so that smoking in those areas will incur disciplinary sanctions.
- Having publicised these alterations, make sure you enforce the company policy when there are reasonable grounds for doing so.
For visitors or customers, the approach can be even simpler:
- Make them aware of the company’s policy.
- Eject them from the premises if the policy is breached.