From 1 July 2007 the Health Act 2006 prohibits smoking in enclosed or substantially enclosed public places, workplaces and public and work vehicles in England. The law aims to protect employees and the public from the harmful effects of second-hand smoke by introducing new criminal offences.
Employers who fail to implement the new law risk: criminal charges and fines (as outlined below); constructive dismissal claims from employees who allege that their exposure to a smoking environment breaches their contract of employment; whistle-blowing claims from employees who allege that they have suffered a detriment because they ‘blew the whistle’ about a failure to comply with the law; and personal injury claims arising from a failure to ensure a safe system of work, causing or exacerbating medical conditions associated with smoking.
Where does the ban apply?
Smoking is prohibited in enclosed and substantially enclosed premises. Enclosed premises are those with a ceiling or a roof and wholly enclosed (except for doors, windows and passageways) either permanently or temporarily. Substantially enclosed premises have a ceiling or roof, but an opening in the walls (not including doors, windows or any other fitting that can be opened or shut) that is less than half of the area of the walls. A roof includes any fixed or moveable structure or device, for example a canvas awning.
The Health Act 2006 creates the following offences.
Smoking in a smoke-free place
Anyone smoking in a smoke-free place faces a fixed penalty notice of £50 (£30 if paid within 15 days) or a maximum fine of up to £200.
Failing to display required no-smoking signs
Each entrance to smoke-free premises must display a no-smoking sign in a prominent position. It must be at least A5 size, display the no-smoking symbol and contain, in characters that can be easily read, the words ‘No smoking. It is against the law to smoke in these premises.’ The words ‘these premises’ can be substituted with a description of the premises in which the sign is displayed, such as ‘this hotel’.
Less stringent rules apply to the sign that must be displayed at an entrance to smoke-free premises from other smoke-free premises (for example, those within a shopping centre) or at an entrance solely for persons to their place of work where there is another entrance with more prominent signage.
Smoke-free vehicles must display a no-smoking sign in a prominent position in each compartment of the vehicle that accommodates passengers.
Failure to display the no-smoking signs could result in a fixed penalty notice of up to £200 (£150 if paid within 15 days) or a maximum fine of £1,000.
Failing to prevent smoking in a smoke-free place
Anyone who controls or manages the smoke-free premises or vehicle (including the driver) could face a fine of up to £2,500 if they fail to prevent smoking in a smoke-free place. It is a defence to show that reasonable steps were taken to cause the person in question to stop smoking, or that it was not known and could not reasonably have been expected to be known that the person in question was smoking, or that it was reasonable not to comply on other grounds.
A no-smoking policy stipulating disciplinary action for non-compliance will help employers avoid liability in the event that employees break the law.
Enforcement is in the hands of local councils, which can enter premises and board vehicles to check compliance with the new law. A telephone line will be in operation to enable employees and members of the public to report possible non-compliance.
Employers should train employees in the new law to reduce the risk of committing an offence. This is especially true for the hospitality sector, where there is a higher risk of non-compliance.
Employees should deal with customers who break the law by drawing their attention to the no-smoking signs and asking them to stop. Customers should be told that it is an offence for management to allow them to smoke, that they are committing an offence by smoking on the premises, punishable by a fine, and that staff will refuse to serve them if they continue to smoke. If they still refuse to stop, they should be asked to leave the premises. If they refuse to leave, the usual procedures for dealing with antisocial/illegal behaviour should be followed. It is advisable to keep a record of the incident to show that reasonable steps were taken to prevent smoking on the premises.
Vehicles used primarily for private purposes are excluded from the ban. Vehicles used to transport members of the public and vehicles used in the course of paid or voluntary work by more than one person (even if those persons use the vehicle at different times or only intermittently) are required to be smoke-free at all times. A private dwelling is generally required to be smoke-free only if part of it is used solely as a place of work by a person who does not live there.
Other limited exceptions include designated bedrooms for smoking in hotels, inns, hostels, guesthouses and members’ clubs providing sleeping accommodation, as long as certain conditions are met. The room must be designated in writing and clearly marked, be completely enclosed (except for doors or windows) and have mechanically closing doors, and the ventilation system for the room must not ventilate into any other part of the smoke-free premises.
Employers should make sure they have taken the following steps:
- closed any designated smoking rooms;
- put up the required no-smoking signs – signs can be downloaded from www.smokefreeengland.co.uk ;
- trained staff on their new responsibilities; and drafted a no-smoking policy, stating:
- that the policy is to ensure compliance with the Health Act 2006;
- that smoking within the premises and relevant company vehicles is prohibited and that breach of the no-smoking policy will be considered as a disciplinary offence and may also give rise to a fixed penalty fine and possible criminal prosecution;
- that the required no-smoking signs will be displayed at the entrances to the premises and in all smoke-free vehicles;
- that those who smoke are permitted to do so only in their rest breaks (if appropriate);
- that employees are not permitted to smoke in certain areas outside the premises (eg around the entrance of the building);
the procedures for employees to follow should a visitor or customer smoke on the premises; and any support services available for those employees attempting to stop smoking.