Time's nearly up! From 1 July 2007 smoking is banned in England in almost all workplaces and enclosed areas to which the public have access.
Although the smoke-free laws have been well-publicised in respect of buildings such as offices it is less well known that the upcoming ban also covers company vehicles. In fact, a survey of 1,141 companies by the Department of Health found 44% did not know that the no-smoking legislation affects business cars and vans used by more than one person. Therefore we thought it was time to help make sense of what you are being asked to do.
When must a vehicle be smoke-free?
A vehicle must be smoke-free where it is used
- in the course of paid, or voluntary work; and
- by more than one person (even if only occasionally).
Are there any exceptions?
There is an important exception. The vehicle does not need to be smoke-free if it is used:
- primarily for private purposes; and
- by a person who owns the vehicle, or has a right to use it, which is not restricted to a particular journey.
In other words the ban will not apply to:
- employees' own cars; and
- company owned cars,
- provided the car is used primarily for personal purposes.
The central part of this test is whether the car is used primarily for private or for business purposes. There is no guidance on how this test is to be applied in practice. However, it is likely to be difficult to show that a company car is provided for primarily personal use.
Also, a vehicle does not need to be smoke-free if it is a convertible car which has its roof fully down.
How does this work in practice?
Pool car scheme: If you run this scheme then it is highly likely that your vehicles will be used by more than one person for business rather than pleasure. In this case your vehicles will need to be smoke-free and to comply with the obligations set out below.
Company car provided to individual: In order to avoid needing to make such vehicles smoke-free you could seek to ensure that the user does not give lifts or lend the car to colleagues, or allow them to use the car at all. This could be dealt within employees' contracts of employment or in your company car policy. However, this may well prove difficult to monitor and enforce. Therefore the other option is to insist that all company cars are kept smoke-free, whatever the circumstances.
Car Allowances: Where an employee is provided with a car allowance, but uses a car registered in his or her own name, then that car would be owned by the employee. If, which is likely, that employee uses the car more for private than business purposes it would not need to be smoke-free. If the employee did end up using the car more for business purposes it is unlikely that the employer would be held responsible for smoking in the vehicle. This is because it is unlikely that it would be deemed to have 'management responsibility' for that vehicle (as referred to below).
However, if you are concerned that employees may use their own cars for a high proportion of business use you could seek to regulate the use of cars funded by car allowances. The car allowance could be made conditional on the employee agreeing:
- not to give lifts or lend the car to colleagues (or to allow them to use the car at all); or
- to use the car more often for private than business purposes.
The other option would be to make payment of the allowance subject to the user keeping the vehicle smoke-free. However, given that the user owns the vehicle this may well prove unpopular and counter-productive.
…or alternatively: The other option would be to provide convertibles as company cars. However, in order to get round the smoking ban the roof would need to be down. It could get pretty cold in winter!
What should you do?
Raise awareness: If you provide company cars which will be required to be smoke-free then all staff, customers, members or visitors must be made aware that these vehicles are legally required to be smoke-free. If an individual does smoke in a smoke-free vehicle that he or she will be required to pay a fine of up to £200.
No-smoking signs: any person with 'management responsibility' for a smoke-free vehicle (for example an employer, manager or user of the vehicle) is under a duty to ensure that at least one no-smoking sign is displayed in a prominent position in each compartment of the vehicle. Therefore, a regular car would require one no-smoking sign to be displayed in a prominent position, for example on the windscreen or dashboard. Where a vehicle has more than one compartment, such as a taxi cab with the screen between the driver and passenger, that vehicle will have to display two no-smoking signs in prominent positions.
The non-smoking sign is the international no-smoking symbol and it must be at least 70mm in diameter. Failure to display a "no-smoking" sign will result in a penalty of up to £1,000
Prevent smoking: any driver, person with management responsibilities for the vehicle, or any person in a vehicle who is responsible for order or safety in it, has a duty to stop smoking in that vehicle. Therefore, all drivers of company cars must be trained on the new laws and informed that they have a personal duty to prevent smoking in their company cars. Where someone as a driver or passenger smokes in a smoke-free vehicle, any other person should:
- draw the smoker's attention to the no-smoking sign and ask them to stop smoking;
- point out that they are committing a criminal offence by smoking in a smoke-free vehicle; and
- remind the person smoking of their personal responsibility to prevent smoking and that both people could receive a fine.
Failure to prevent smoking will result in a penalty of up to £2,500.