A smoking ban comes into force on Sunday 1 July 2007 in England. The smoking ban is already in force in Scotland,Wales and Northern Ireland.
What are smoke-free premises?
The smoking ban will cover a wide range of premises. As a general rule, it will apply to most enclosed and substantially enclosed public places and shared work places. Even if premises are used intermittently or at different times, provided there is more than one person working there, the smoking ban will apply at all times. Premises open to the public but which are not work places will be subject to the smoking ban only while the premises are open to the public. In reality it is difficult to envisage a building which is open to the public but which constitutes no element of a work place.
Once premises have satisfied the criteria above, the smoking ban will only affect those premises to the extent that they are enclosed or substantially enclosed and where only part is used as a workplace, only to that extent.
Premises are enclosed if they have a ceiling or roof and (except for doors, windows or passageways) are wholly enclosed either on a permanent or temporary basis.
Premises are substantially enclosed if they have a ceiling or roof and the openings in the walls (ignoring doors and windows) form less than half the area of those walls – the 50% rule.
The practical effect is that if half or more of the walls are absent, you can smoke legally. If over half of the walls are present, smoking is not permitted.
Does the smoking ban extend to vehicles?
Yes, (with the exception only of aircraft and ships) if the vehicle is used for business or voluntary work by more than one person (even if they are not in the vehicle at the same time) or if the vehicle is used to transport the public. A company car used by more than one person must be smoke free; a private car used for work need not.
The regime applies not only to cars, but also to light and heavy goods vehicles, taxis, buses and trains. Consistent with the enclosed/substantially enclosed test, convertibles having a removable roof need not be smoke-free when the roof is fully down.
Private dwellings – includes self-contained residential accommodation for temporary or holiday use, garages, outhouses and other structures exclusively used by occupants of a house. Common areas will not benefit from the exemptions. So whilst individual flats within a block will fall outside the regime, any communal stairwell or lift must be smoke-free. If any part of the dwelling is used solely as a place of work by more than one non-resident, by a non-resident and a resident or by anyone whether or not resident but who in the course of that work invites others in, the exemption again will not apply. Despite this, the presence of domestic staff or nannies for example, will not prevent the resident from smoking if they want to.
Hotels, guesthouses, inns, hostels or members' clubs – can designate smoking bedrooms but this will not cover dormitories or rooms available for more than one person to share at the same time.
Care homes, hospices and prisons for adults – designated smoking rooms permissible.
Performers – exempt from ban if artistic integrity makes it appropriate for them to smoke during the performance. Interestingly this does not apply to rehearsals! Specialist tobacconist shops – smoking permitted when being used for sampling cigars and pipe tobacco.
Off-shore installations – designated smoking rooms permissible.
Research/testing facilities – designated rooms permissible whilst being used for specified research or tests in connection with smoking.
Mental health units – designated smoking rooms permissible for use of adult patients in residential accommodation but this exemption lapses on 1 July 2008.
To take advantage of an exemption there is no notification requirement but certain criteria must be satisfied e.g. smoking rooms must not ventilate into smoke-free premises, must have mechanically closing doors with solid ceiling and walls and must be clearly marked as a smoking room.
Despite previous attempts to exempt private members' clubs and areas in pubs not serving prepared food, no such concessions were secured. Smoking rooms will not be permitted unless they fall within one of the specific grounds detailed above.
Remember that where premises benefit from an exemption so smoking is permitted, employers remain bound by the existing duty of care requiring them to consider what needs to be done to minimise or otherwise protect that employee from the effects of exposure to second-hand smoke
Is it only cigarettes which are now outlawed?
No. The no-smoking regime applies to all substances that a person can smoke including cigarettes but also hand-rolled cigarettes, pipes, cigars, herbal cigarettes and water pipes.
Display of no-smoking signs in smoke-free premises is of itself not enough. There are designated content, size, design, colour, and wording which must be adhered to by way of minimum requirements. Businesses can embellish these requirements provided the minimum criteria is met.
There must be at least one no-smoking sign displayed in a prominent position at every entrance to smoke-free premises. It must be at least A5 size, display the nosmoking symbol (red circle at least 70mm in diameter!) and state in a manner that can easily be read ‘No smoking. It is against the law to smoke in these premises’. As a concession you can substitute reference to these premises for suitable descriptive wording e.g. this hotel etc.
Where the entrance is from one smoke-free premises to another or solely for staff entering their place of work in premises which have another entrance at which a fully compliant sign is displayed, then you only need to display the international no-smoking symbol (again, 70mm compliant) without text in a prominent position at the entrance.
Smoke-free vehicles also need to display a no-smoking sign in each compartment available to the public.
Local authorities have responsibility for enforcing the smoke-free regime. The cynical may wonder how in practice enforcement will be achieved. No doubt conscious of this, whistleblowers can report breaches by way of a dedicated phone line.
Practical Impact for you?
If you are involved in control or management of smoke-free premises you need to familarise yourself now with the regime's requirements and develop necessary procedures including training of staff on how to deal with anyone smoking in breach of the ban. The Smokefree England website is a useful practical resource and for example includes a flowchart showing the steps that could be taken to deal with anyone found smoking on smoke-free premises! See www.smokefreeengland.co.uk.
Recommended action is for smoke-free policies and procedures to be in writing so you can demonstrate your compliance. A written record should be kept of all smoking incidents, the action taken by staff and the outcome. Ashtrays should be removed from smoke-free premises.
If you already operate a voluntary no-smoking policy you may be particularly at risk of inadvertent breach, for example if you are unfamiliar with the detail such as the need to ensure that your existing signs meet the minimum legal criteria.
If you are a landlord or managing agent of a multi-let building, (whether commercial or residential) you will have increased duties and are likely to incur further costs in policing common areas to ensure they are compliant. The well drafted service charge should include as a head of service charge expenditure the costs of complying with legislation so at least those increased costs can be recovered from your tenants.
Individual tenants should not be complacent and assume it is only their landlord who is burdened by new duties. If you are the tenant of a shop unit within a larger centre, you still have a duty to display an appropriate sign at the entrance to your shop although you will probably only have to display the smaller no-smoking symbol rather than the larger sign which the landlord must display at the centre entrances. Landlords will expect tenants to be responsible for ensuring that their individual premises comply with the smoking ban subject to exemptions. Compliance would normally be achieved via the standard tenant covenant to comply with legislation.
Solution for those who still want to smoke?
Whilst there is no legal obligation to do so, you could consider providing an outdoor smoking shelter for customers, staff, tenants etc. If so, bear in mind the following:
?? The shelter must not be substantially enclosed otherwise it will fall within the smoking ban.
?? Tenants looking to construct such shelters must assess whether the landlord's consent will be required.
?? Planning permission, listed building and conservation area consents may be an issue.
?? Licensing conditions may need to be varied if restaurant and bar customers will now be smoking and drinking outside.
?? Outdoor smoking shelters may have a consequential adverse impact on noise levels and litter.
?? The location of any shelter is critical since smoke cannot be allowed to enter smoke-free premises.