The Smoke-free Regulations will ban smoking in public places (including workplaces) in England from July 2007. 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 to display non-smoking signs and prevent smoking in workplaces covered by the Regulations.

“Enclosed” and “Substantially enclosed”

All workplaces are to be smoke-free if they are “enclosed” or “substantially enclosed”. Premises that have a ceiling or roof and, not including for doors, windows or passageways, are wholly enclosed whether on a permanent or temporary basis will be considered to be “enclosed”. Premises would be considered to be “substantially enclosed” if they have a ceiling or roof but there are openings in the walls which are less than half the total wall area including other structures that serve the purpose of walls and constitute the perimeter of the premises. When determining the area of an opening no account would be taken of openings in which doors, windows or other fittings can be opened or shut.

Practical points:

  • Generally, premises with a ceiling will be smoke-free unless more than 50% of the wall area is open to the outside air.
  • Smoking rooms will be illegal once the new law is in place.
  • Entrances to buildings are not currently covered by the Regulations, although a receptionist or other person affected by the passage of smoke may be able to insist on their employer prohibiting smoking by its employees in a particular area.
  • Employers may wish to prohibit smoking outside their premises to protect their image.

Signage

Smoke-free premises will be required to display a No Smoking sign that meets minimum requirements at each public entrance in a position that is prominently visible to persons entering the premises. It is the employer’s responsibility to ensure that the requisite signs are in place. The Department of Health (DH) will provide signs free of charge. To meet the legal requirements of the Regulations signs must be displayed in English, however, the DH will also provide signs in other languages and employers may wish to display additional signs depending on the composition of employees, contractors, customers and any other person likely to visit the premises.

Vehicles

The Government intends that vehicles used as a workplace by more than one person should be smoke-free regardless of whether individuals are in the vehicle at the same time. The Regulations will apply to any work vehicle regardless of whether it is a heavy goods vehicle, a delivery van or a farming vehicle, on the basis that the vehicle is “enclosed”. Company cars will be deemed to be entirely non-smoking if they might be used by more than one person, unless the car is a convertible car and the roof is open. There will be an exemption for vehicles that are only ever used as a workplace by one person with no passengers. The Regulations will not cover an employee’s own vehicle unless it is being used for hire or as a work vehicle by more than one person. There is no intention for purely private vehicles to be smoke-free.

Exemptions

There is no obligation for persons in control of premises who can rely on exemptions from smoke-free legislation to allow smoking to take place within them. The main exemptions relate to 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. Disciplinary rules may need be amended to make this point clear. There is also an exemption in relation to designated bedrooms in hotels and similar establishments. To fall within the exemption the designated bedroom must be set apart exclusively for sleeping accommodation.

Offences

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.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.