From 1 July 2007, it will be a criminal offence to smoke in smoke-free premises. There are additional duties on occupiers and managers of smoke-free premises to display no-smoking signs and to take reasonable measures to prevent smoking on the premises. The ban on smoking covers all lit tobacco products or any other substance that can be smoked.

Smoke-free premises

Premises are smoke-free if they are enclosed or substantially enclosed and either:

  • open to the public; or
  • used as a place of work by more than one person, even if only intermittently; or
  • a vehicle that is used by the public, or in the course of work by more than one person.

Premises are "enclosed" if they have a ceiling or roof and, except for doors, windows and passages, are wholly enclosed by walls. Premises are "substantially enclosed" if they have a ceiling or roof, are enclosed by walls and the openings in the walls amount to less than half the surface area of the enclosing walls. This could cover structures such as covered walkways, balconies, covered car parks and even existing shelters for smokers.

Signs

It is the duty of the person who occupies or is in control of the premises, including vehicles, to display no-smoking signs. Under the regulations a minimum of one sign, at least A5 in size, showing the no-smoking symbol must be displayed in a prominent position at each entrance to smoke-free premises with the words "No smoking. It is against the law to smoke in these premises." The words "these premises" can be substituted for more descriptive words, such as "this hotel". For vehicles, entrances from other smoke-free premises, or minor entrances for employees only where compliant signs are displayed at the main entrance, the sign need only show the no-smoking symbol in a prominent position. We recommend also that contact details for an appropriate representative of the occupier or manager of the premises should be shown on the sign for the reporting of non-compliance with the ban or for making enquiries.

Preventing smoking on the premises

It is the duty of the person who controls or manages the premises to stop any one who is smoking on the premises. Failure to do so constitutes an offence. However, it is a defence to show:

  • reasonable steps were taken to stop the person smoking; or
  • it was not known, and it could not reasonably be expected to be known, that the person was smoking.

Penalties

Inspectors can award fines under penalty notices payable within 30 days for two of the offences under the regulations, or the offender can be convicted of the offence in court and fined.

  • Smoking on a smoke-free premises
    • £50 for penalty notice
    • (£30 if paid within 15 days of notice)
    • £200 if convicted in court
  • Not displaying no-smoking signs, or displaying non-compliant no-smoking signs (e.g. insufficient information, size, number, locati
    • £200 for penalty notice
    • (£150 if paid within 15 days of notice)
    • £1000 if convicted in court
  • Not preventing smoking on smoke-free premises
    • £2500 if convicted in court

Exemptions

Certain premises are exempt from the smoking ban, as long as they meet the requirements of the exemption. Amongst the principal exemptions are:

  • private accommodation - unless it is also used as a workplace for more than one person;
  • residential, hotel or members' club accommodation - in rooms qualifying under the regulations.

There are also exceptions for performers, specialist tobacconists, offshore installations and tobacco research facilities.

Commercial considerations

The effect of the smoking ban should be made clear to employees at all levels. Health and Safety policies and practices should be updated to take account of the smoking ban, including the following.

  • refresher training sessions for existing employees and inductions for new employees;
  • disciplinary procedures which will apply if the ban is broken by an employee; and
  • training on how to deal with and report a breach of the smoking ban.

Employees must also be consulted, as it is a decision that substantially affects their health and safety, on any alternative arrangements the employer proposes to make for smokers in response to the smoking ban, such as a designated smoking shelters and smoking breaks.

Provisions for smokers

Although there is no legal obligation under these regulations to make alternative arrangements for employees who smoke, we recommend making clear arrangements to control where and when employees smoke. Particular points to note are that:

  • care needs to be taken so that smoking shelters can not be classed as substantially enclosed and thereby become "smoke-free" under the regulations;
  • smoking through open windows and in doorways could be an offence under the ban, and in any event may be undesirable in the workplace;
  • care needs to be taken not to alienate smokers or non-smokers to the extent that they feel unfairly treated by any discretionary measures introduced due to the ban; and
  • also bear in mind other related controls such as litter control and general duties under health and safety legislation.