From Sunday 1 July 2007 England will be the last part of the United Kingdom to become smoke-free. Scotland introduced its own smoking ban on 25 March 2006, with Wales and Northern Ireland having gone smoke-free on 2 and 30 April respectively. Basically, smoking will be prohibited in enclosed premises which are open to the public and in workplaces to protect people from the harmful effect of second-hand smoke, as well as reducing the number of smokers. So what do employers need to do and what are the particular issues employers need to consider?
Which premises must be smoke free?
All “enclosed” or “substantially enclosed” premises used as a workplace or open to the public must be smoke free. Private dwellings do not have to be smoke free, although any communal areas (eg lifts, stairs and kitchens) will need to be. “Enclosed” means premises that have a ceiling or roof and, save for doors, windows and passageways, are wholly enclosed whether permanently or temporarily (so this will include tents and marquees).
“Substantially enclosed” means premises that have a ceiling or roof and also have an opening in the walls (not including windows and doors) that constitutes less than half the area of the walls. This is known as the ‘50 per cent rule’. An outside shed that has walls at the back and sides will be “substantially enclosed” but a canopy outside held up just by poles (and with no walls) will not be. Premises will be “open to the public” where a section of the public has access to them, whether by invitation or not and whether on payment or not.
Workplaces must be smoke free where more than one person uses them or where the public might attend to seek/receive goods or services. This will therefore include all restaurants, bars, offices, galleries and museums, factories, shops etc, unless only ever used by one person. As the aim is to protect everyone from smoking, customers will also be required not to smoke in smoke-free workplaces.
Certain vehicles must also be smoke free where they are used: (a) by the public (whether or not for reward or hire. This will include buses, trains, taxis, coaches); or
(b) in the course of work (whether paid or voluntary) by more than one person (even if those people use the vehicle at different times). This will include works’ vans, delivery vehicles and pool cars.
What are the signage requirements?
Smoke-free vehicles also need to display no smoking signs in each compartment where people are transported. So, for trains - in each compartment, for buses - on each level, for cars - in the front and the back).
Are there any exemptions?
There are some limited exemptions such as:
- Hotels and guest houses may designate specific smoking rooms but all rooms that are shared must always be smoke free.
- Care homes, hospices and prisons can have designated smoking rooms and bedrooms.
- Until 1 July 2008 only, residential mental health units can have designated smoking rooms and bedrooms.
- Off-shore installations may have designated smoking rooms.
- Specialist tobacconist shops may allow customers to sample cigars or pipe tobacco.
- Research and testing facilities may designate certain rooms for smoking only while the rooms are being used for any research or testing activities.
The ban does not normally apply to private dwellings, so a homeworker who works alone is not obliged not to smoke. However, if that homeworker invites others into their home solely for work purposes then they must comply with the ban.
Who is responsible and what are the penalties?
Anyone who manages or is in charge of smoke-free premises or vehicles is personally responsible to ensure those premises/vehicles become and remain smoke-free. Local councils will be responsible for enforcing the regulations and can impose various penalties:
- Those who smoke in a smoke-free place or vehicle can be liable for an on-the-spot penalty of up to £50, or up to £200 if prosecuted.
- Anyone who occupies or is concerned in the management of smoke-free premises and fails to display the correct signage can be liable for an on-the-spot penalty of up to £200, or £1,000 if prosecuted.
- Anyone who controls or is concerned in the management of smoke-free premises will have a duty to prevent anyone smoking on the premises. Those who fail to prevent smoking in a smoke free place, for example a manager, can be liable for a fine of up to £2,500. It is, however, a defence for that person to show that he took reasonable steps to prevent the person smoking or that he did not know, or could not reasonably be expected to know, that the person was smoking.
A telephone line will be in operation from 1 July 2007 to enable members of the public to report possible breaches of the law. Issues for employers?
Smoking rooms will no longer be legal and employees will have to go outside to smoke. Employers do not have to do so, but might wish to provide a shelter for smokers to use. However such a shelter must not be “substantially enclosed” otherwise it will need to be smoke free.
Employers should consider the location of a shelter to avoid it having a detrimental impact on the business’ brand and reputation, eg by having large groups of people outside smoking, causing a noise and leaving cigarette ends and other rubbish lying around. Positioning of the shelters should be given consideration, walking through a cloud of smoke to reach entrances will be unpleasant for visitors and other employees.
Having only one smoking area could foster workplace disagreements and employers might consider, if feasible, having a number of different outdoor smoking areas so that employees who don’t get on can stay away from each other. It could be a stipulation arising out of any disciplinary proceedings or a disagreement between employees that they smoke in different specified smoking areas.
Smoking breaks and time off
Some employers allow employees to take breaks in order to smoke outside the building. However, this can cause resentment with non-smoking staff who question whether smokers are receiving preferential treatment in relation to breaks. Employers should offer the same amount of break time to non-smokers or not allow the smoking breaks.
Employers might also want to offer employees access to services to help them give up smoking. The National Institute for Health and Clinical Excellence (NICE) has recently suggested employers should allow employees paid time off to attend smoking cessation centres to give up smoking. Again, employers need to consider and manage any resentment providing time off may cause in nonsmoking staff. Note, addiction to nicotine itself does not amount to a disability under the Disability Discrimination Act 1995, so no adjustments need to be made purely to accommodate that addiction.
The extent to which particular vehicles should be smoke free depends on how the car is used and whether or not it is used “primarily for private purposes”. If it is, it does not have to be smoke free. However, no guidance has been given on what “primarily for private purposes” means.
A car that is provided as a benefit of employment and that is only used by an employee to travel to and from work (even if it is sometimes used to transport a colleague or customer) is likely to be exempt on the basis that it is used “primarily for private purposes”. At the other end of the spectrum, a vehicle that is used to transport more than one employee will be required to be smoke free. This will include pool cars owned by the employer and used on an ad-hoc basis by various employees, delivery vehicles used by different employees at different times, works’ vans etc.
The difficulty for employers will be in relation to those vehicles between these two ends of the spectrum. However, employers need to make a decision because where a vehicle should be smoke free, the person responsible for it (eg the fleet manager) must ensure it remains smoke free and that it displays the correct signage. An incorrect decision could result in a penalty being imposed.
Managers might prefer to take the approach that all company cars (and any private cars required to be used for business purposes) should be “smoke free” and should display the requisite signs unless the owner/driver can make out a successful case to the contrary. Anyone who objects to their vehicle being smoke free will then have their cases determined on a case by case basis. The alternative would be for the business to positively consider the position in relation to each car used for business purposes, which is likely to be a more onerous task for the business.
Dealing with individuals who ignore the ban
Employers should introduce smoking policies and ensure all employees are aware of its contents. Given that smoking in a smoke-free area carries a criminal sanction, it is not unreasonable to attach a sanction of gross misconduct to a breach which may, in appropriate circumstances, lead to dismissal.
In addition, employers should consider providing employees with guidance on what to do if customers, clients and/or suppliers light up in smoke-free premises. Are all employees expected to challenge the individual or contact a manager to deal with the offender?
At present most workplaces (save bars and restaurants) are likely to be largely smoke free anyway but employers should still consider introducing smoking policies (and training employees - particularly managers - on it). Such a policy should specify where, if at all people can smoke when on employer’s premises, the penalties for smoking in smoke-free areas and for removing or failing to display no smoking signs. In addition to the criminal sanctions, employees should be made aware of disciplinary action that may be taken against them for non-compliance with the smoking policy.