On 1 July the provisions of the Health Act 2006 relating to smoke-free premises (which are already in force in Scotland and Wales) will come into force in England. These provisions, together with the Smoke-Free (Premises and Enforcement) Regulations 2006, will ban smoking in enclosed public spaces and vehicles.
What is an “Enclosed Public Space”?
The legislation applies to any nonresidential indoor area and all substantially enclosed areas. This will affect most workplaces, and will include, for example:
· rest areas
· designated smoking rooms
· company vehicles and
· some outside areas adjacent to the workplace.
Smoking will be banned almost everywhere.
Premises will be considered enclosed if they have a ceiling or a roof and are wholly enclosed except for permanent or temporary windows, doors and passageways. Premises will be substantially enclosed if ‘…they have a ceiling or roof but there is an opening in the walls or an aggregate area of openings in the walls which is less than half of the area of the walls, including other structures that serve the purpose of walls and constitute the perimeter of the premises.’
In practice this would appear to mean that:
· a shelter with an awning or fixed roof, which is built on to the side of work premises with a wall at either end, would be treated as substantially enclosed;
· a shelter with an awning or fixed roof, which is built on to the side of work premises but which has no side or front walls would not be subject to the new law.
What will constitute as a compliant shelter may still be open to debate, so employers who wish to provide a shelter for smokers should consider seeking guidance from their local authority as to whether their proposed shelter would comply with the authority’s interpretation of the law.
Employers ought to ensure that they have a smoke-free policy in place so that employees are aware of the legislation and any changes that may have to take place as a result.
For example, employers will need to consider whether smokers who currently have smoking breaks will still have them after the ban is in place.
If so, will non-smokers be given the same breaks? If smoking breaks are to be discontinued, are any plans proposed for assisting smokers to give up?
Employers should consult with employees in order to minimise the risk of objections and to ease the introduction of the new policy. Any policy should be communicated effectively and positively to everyone it affects.
Employees should be told who the policy applies to, where it applies, who is responsible for implementing it, the sanctions for non-compliance and the date the policy comes into effect.
As with any policy, it is important to ensure that any new policy is monitored and reviewed on a regular basis to see how effective it is and whether further changes need to be made to ensure compliance with the law or to deal with employees’ concerns.
Employers who fail to achieve a smoke-free workplace could face criminal action by the enforcing authorities.
There might also be civil action by any employees who feel that their health is being jeopardised. Importantly, any claims relating to the effects of passive smoking in the workplace are likely to attract punitive damages.
The Smoke-Free (Signs) Regulations 2007 are very specific in their requirements for no-smoking signs in smoke-free premises and vehicles. An A5 sign displaying the standard no smoking symbol (of at least 70mm diameter) and reading “No smoking. It is against the law to smoke in these premises” must be displayed at every entrance to smoke-free premises. Where the entrance to a place of work is from one smoke-free premises to another, or is a secondary entrance only used by persons who work in the premises, the requirement for words on the sign is unnecessary but all other requirements remain the same.
Similarly, all company vehicles must display at least one no smoking sign.
Enforcement & Penalties
The government has said on numerous occasions that its intention is to create a supportive, nonconfrontational environment where people are encouraged to comply with the new law.
However, only time will tell how local authorities, who will enforce the new law, will tackle those who dare to light up and those who allow smoking on their premises.
Many councils have already set up dedicated task-forces to enforce the new law and employers should be prepared for inspections of their premises. There will also be a dedicated hotline in each local authority area for members of the public to report breaches of the new law.
Individuals caught smoking in smokefree premises will face a fixed penalty of £50. However, if an employer fails to prevent smoking in its workplace the maximum fine will be £2,500.
Failure to comply with the requirements for no smoking signs brings a fixed penalty of £200, which will be reduced to £150 if paid within 15 days of the issue of a notice.
How To Comply
It is imperative that your smoke-free policy is considered now before the new law comes into force.
Place your orders for no smoking signs with suppliers and ensure that your employees are fully briefed on the law, your policy and the penalties which can result from lighting up after 1 July 2007, both by way of fixed penalties and internal disciplinary action.
Employees in breach of the new law should be dealt with firmly using your disciplinary procedure if necessary, with details of all incidents (and the employees involved) being recorded.
On no account should this legislation be considered lightly…you never of your local authority may be around the corner! know when the smoke-free task force