The Smoke-free Regulations 2007 will ban smoking in public places, including workplaces, in England from 1 July. Subject to limited exceptions, the Regulations make it unlawful for individuals to smoke in areas that are enclosed or substantially enclosed. The Regulations also impose positive obligations for the employer to display non-smoking signs and prevent smoking in workplaces. Here Rustom Tata, head of the employment team at law firm DMH Stallard reviews the most frequently asked questions he is receiving from employers –
Staff have been told they cannot smoke at their desks but I provide a smoking room. Will this be sufficient?
The provision of a smoking room, while assisting smokers, does not comply with the new law. To lawfully retain a smoking room it must not have any access to work areas, including corridors, and will need its own self-contained ventilation system.
Can I do away with the smoking room?
Subject to consultation with those employees affected, this should be possible in nearly all cases.
Can I simply ban people from smoking altogether during working hours?
The legal view is that unless there is an express right or an implied right to do so – arguable in some cases where the employer has previously permitted employees to smoke at particular times and in particular places – the employer can prohibit smoking during working time. As this is an emotive issue, a process of consultation should be undertaken before imposing a blanket ban.
Can I ban people from smoking outside working hours?
In most cases such a ban would seem unreasonable and to dismiss an employee in breach would give rise to a claim for unfair dismissal. It is likely in the coming years, as non-smoking gains an even higher profile, that non-smokers will increasingly complain of the lingering smell of smoke that accompanies their colleagues. The employer will then have to consider how to respond to such complaints.
Can I only recruit non-smokers?
This is an untested area, but it is probably lawful to limit recruitment in this way. To avoid potential further litigation it would be wise to show this as part of a clear plan to comply with the new law and encourage a smoke-free working environment for staff. To be effective, you would have to require an employeeto notify you if they took up smoking, and to have both deterrent and support systems in place for anyone who subsequently became a smoker.
How do I demonstrate that the premises are a no smoking area?
Smoke-free premises will be required to display a ‘No Smoking’ sign at each public entrance visible to persons entering the premises. The Department of Health (DH) will provide signs free of charge. Legal requirements state the signs must be displayed in English, however, the DH will also provide signs in other languages and employers may wish to display additional signs.
I have heard that company cars are affected by these changes. Is that right?
Company cars will be deemed to be entirely non-smoking if they are used by more than one person, unless the car is a convertible car and the roof is open. Vehicles used as a workplace, such as delivery vans, heavy goods and farming vehicles etc, being used by more than one person, should be smoke-free regardless of how many individuals are in the vehicle at the same time.
Are there no exceptions to the Regulations at all?
The main exemptions relate to hotels, residential homes, long-term residential mental health units, prisons, offshore platforms and hospices. Although smoking will be allowed in either a bedroom or a designated smoking room these exemptions are intended to relate to residents and their guests only and employees will not be able to smoke on the premises.
The Regulations introduce the following new offences with significant penalties for non-compliance:
- Failure to display offences – An employer who fails to display a prominent “No Smoking” sign will be subject to a fixed penalty of £200 (discounted to £150 if paid within 15 days). If unpaid or unsuccessfully challenged the fine can increase to £1,000.
- Offence of smoking in a smoke-free place – An employee (or visitor) who is caught smoking will be subject to a fixed penalty of £50 (discounted to £30 if paid within 15 days). If unpaid or unsuccessfully challenged a fine of up to £200 can be payable.
- Offence of failing to prevent smoking in a smoke-free place – An employer who fails to take reasonable steps to prevent smoking will be liable to a fine of up to £2,500. There is no fixed penalty alternative. Displaying the “No Smoking” sign alone will not provide a defence.