Up in smoke

Employers
are taking measures to protect employees from the dangers of tobacco smoke
without the intervention of the European Union. simon kent reports

uropean
Union commissioners may be working on policies to affect a complete ban on
smoking in the workplace. But in the UK some employers have long been aware of
the smoking issue and have taken significant measures to manage the working
environment. David Byrne, the European commissioner for health and originator
of the smoking ban initiative, wants to reduce the 30,000-50,000 deaths
attributed to passive smoking every year in the EU.

According
to Jonathan Lawton of employment lawyers Hill Dickinson, however, the UK’s
Health and Safety at Work Act already provides good protection for employees
who do not want to work in a smoky atmosphere. “There’s so much authority now
on the dangers of passive smoking,” says Lawton. “Employees wouldn’t even need
to prove they were being harmed.”

The
issue is at its most problematic for companies where the workplace is also a
public place. The Public Places Charter Group – whose members are drawn from
many hospitality industry-related interest groups – claims 47% of pub visitors
are smokers, illustrating clearly that one of the attractions for customers is
the cigarette that goes with the drink.

But
there are other industries where the cross-over between employee and customer
environment occurs. David Mallender, communications manager at rail operator
GNER says customer demand has a part to play in the provision of smoking space
on the train services it runs. “At the moment smoking carriages are perceived
as something passengers look for,” he says.

“On
longer routes it marks our service out from the airlines where smoking is not
permitted at all.”

For
GNER’s employees, the workplace is a non-smoking area – regardless of what its
customers may be doing. If they are on view to the public, they cannot smoke.
At the same time, ticket-collecting employees are expected to do their job in
all carriages irrespective of the smoking habits of those passengers.

Virgin
Trains also allows passenger preferences to dictate the smoking status of
stations and trains. Virgin spokesman Jim Rowe says: “The smoking policy is not
a regulation set by Virgin, but depends on what the customer wants.”

Rowe
adds that individual stations will still ban smoking on platforms if there is a
safety issue – if the platform is underground or subject to poor ventilation.

A
combination of common law and commercial sense appears to lie behind many
employers’ approach to smoky situations. JD Wetherspoon personnel and training
director Su Beacham-Cacioppo says its policy and practices on smoking at the
pub chain have gained the approval of both Ash (Action on Smoking and Health)
and Forest (Freedom Organisation for the Right to Enjoy Smoking Tobacco) –
therefore, she says, it has got the balance right.

Since
April 1992, all Wetherspoon pubs   have
prohibited smoking at the bar. Every pub has designated between a quarter and
one third of the customer area as non smoking. There is no smoking in the
toilets and, having spent between £100,000 and £150,000 on ventilation systems
at each location (good ventilation systems cost a tenth of that amount) it even
claims it is possible to spend the night in a smoking area and come out of the
pub without smelling like an ash tray.

Beacham-Cacioppo
says: “We believe we’ve got it right on this issue, and if everyone else
followed suit and took the time to make similar changes, there wouldn’t be this
pressure for Government at any level to change or introduce new legislation.”

Beacham-Cacioppo
is keen to stress that Wetherspoon’s campaign is a commercial rather than a
moral one. With these policies in place for so long, its customers know
precisely what to expect smoke-wise when they visit a Wetherspoon pub. They
respect the restrictions and regard the approach as part and parcel of the
Wetherspoon experience, along with no music and reasonable prices.

Customer
demand has recently led Pizza Hut to declare itself a no-smoking restaurant
chain. Operations manager Brian Rimmer says: “This isn’t a ban as such, it’s
been a process we’ve been following for the past five years.”

The
first inklings of the removal of ashtrays from the chain began when feedback
from individual restaurant managers suggested that the number of smokers was
declining significantly. Even at that early stage a couple of managers applied
for their restaurants to go entirely non smoking because of lack of demand.

With
about 25 per cent of the average 150 seats per restaurant dedicated to smokers,
Pizza Hut established the practice of running two distinct queues for customers
– based on their smoking preference. Over time, the cultural shift in attitude
towards smoking and smokers manifested itself in a significant decline in
demand for smoking seats, resulting in yet more requests from restaurant
managers to do away with the provision altogether.

“We
thought long and hard about whether to remove the smoking seats altogether and
what damage the move might have,” says Rimmer. “In the end, we did it as a test
to see what would happen.” What happened was positive feedback from customers
and no adverse comments.

The
no-smoking approach was incorporated into the company’s new-build and
refurbishment plan. Rather than switching every restaurant overnight, new sites
would be non-smoking from the start and existing locations could make the
change when they underwent their five-year re-image.

This
is all very well for the customers, but what about employees? Pizza Hut
continues to employ smokers and understands their need to take a break and a nicotine
hit. In most cases, smoking is still permitted in the restaurant’s team room
and the manager’s office. Some branches have become entirely smoke free –
driven by employees’ preferences – but Rimmer is cautious about implementing a
complete ban across the workplace. “Over the next couple of years we’ll
probably become 100 per cent non-smoking,” he says. “But we do employ smokers
so we need to manage them.”

With
space at a premium, the company cannot provide a dedicated or segregated area
for smoking employees at every location and Rimmer and the restaurant managers
do not want to push smokers outside.

“We
don’t want that visual element of seeing employees standing outside the
restaurant having a cigarette,” he says. “We think that’s a put-off for customers,
so we still need to think through how to manage that.”

Whatever
the company’s ultimate conclusion, perhaps there is enough evidence that
employers are capable of protecting their employees from the dangers of tobacco
smoke without the intervention of the EU.

The
Public Places Charter on Smoking

In
September 1999 the then minister of public health Tessa Jowell MP endorsed the
establishment of the Public Places Charter on Smoking, an initiative led by the
hospitality industry to improve the provision of facilities for non smokers and
the availability of clean air. Providing standardised sign-age that would
explicitly state a location’s smoking policy – thereby informing customer
choice – the Charter Group agreed compliance targets with the Department of
Health to be met by January 2003.

In
its progress report published in April this year it appears that
self-regulation is working. The original target that 50 per cent of all pubs
and half of the members of the Restaurant Association (RA) should have a formal
policy in place with supporting signage has been met and surpassed:  research found 82 per cent of pubs and 59
per cent of RA members met this requirement.

The
Charter Group also specified a ventilation standard – 30m3 of fresh outside air
per person per hour. However, expense has been one factor in the slow uptake of
such equipment.

A
medium-sized pub requires an investment of about £12,000-£14,000 – and while
the Atmosphere Improves Results initiative indicates smoke reduction brings
increased turnover through customer spend and reduced costs in cleaning, the
size of the initial investment is prohibitive for many pubs and restaurants.

As
a cheaper alternative, some locations have opted for over-the-bar ventilation
that delivers fresh air to the employees’ principal place of work while also
pushing polluted air away from the serving station.

For
details on the Charter and how to comply, contact the Atmosphere Improves
Results initiative at www.airinitiative.com

Smoking
legislation

Health
and Safety Legislation

Employers
have a duty to ensure the health, safety and welfare of employees “so far as is
reasonably practicable”. While it may be argued an individual who applies for a
job in a pub should expect tobacco smoke, the employee does not – indeed cannot
– waive their right to a safe working environment.

In
1992, Workplace (Health, Safety and Welfare) Regulations established that every
workplace should be sufficiently ventilated.

Constructive
Dismissal

If
an employee leaves as a direct result of an employer behaving in a way that
breaches its employment contract, the employee can claim constructive dismissal.
Doing nothing for workers who complain about smoke in the workplace could
therefore start a move down the path of litigation.

This
has been demonstrated in Waltons and Morse v Dorrington 1997 (IRLR 488), where
the employer did nothing to address the employee’s concerns about smoke,
leaving the employee with no choice but to resign.

Employer
check list


Consult with smoking and non-smoking employees to get their views on smoking in
the workplace, offering them the chance to affect the way the issue is managed.


Establish clear areas for smoking/non-smoking and ensure areas do not cross
pollute


Consider the smoking status of customers. Do they need managing/educating on
where they can and cannot smoke?


Invest in effective ventilation systems that ensure a constant supply of fresh
air in the workplace


Respond promptly to all complaints regarding smoky atmospheres. Offer
alternative, smoke-free positions where possible or introduce initiatives to
deal with the problem

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