Stubbing Out Workplace Smoking

by Hazel Phillips

The much publicised workplace smoking ban is finally introduced in England and Wales on 1st July 2007 when The Smoke Free (Premises and Enforcement) Regulations 2006 brings into force a ban on smoking in all enclosed places to which staff or the public have access.  If your business has not yet considered the impact this legislation will have on your business, now is the time to do so. 

Although it has been almost a decade since there was widespread smoking in the workplace, the legislation only permits smoking outside in the open-air meaning that even the odd cigarette behind closed doors or when no one else is in the office will be outlawed. The key issue is that the legislation “calls time” on designated smoking areas and smoking rooms within the workplace but it will also force employers to end their tolerance of informal smoking arrangements.

Perhaps more important to take on board, is the fact that the legislation covers any enclosed workspace and therefore includes company vehicles.   Even an employee’s private vehicle will be covered when the employee is using it in the course of their duties.  This means that even the car shares of the more eco-friendly employees could potentially be caught and employers are under a duty to make their employees aware of this.

This is because the legislation makes it obligatory to take steps to ensure that staff, customers and even visitors are aware that premises are smoke free.  This includes prominently displaying the mandatory no smoking sign but employers should consider going further than this.  We would recommend that you use this opportunity to review any existing smoking policy that is in place and to reissue it to all staff.  If you do not currently have a smoking policy, implementing one now could be a proactive way of complying with the regulations.

Despite appearances to the contrary, the legislation is not designed to stop people smoking.  It is merely concerned with combating the risks of second hand or passive smoking.  Employers will still be allowed to provide shelter for staff and visitors wishing to smoke but should be aware that just because a structure is not made of bricks or mortar does not mean that it will escape the definition of premises.  Even a canvas tent or awning could fall foul of the regulations if more that half of the structure’s wall area is enclosed.

The Department of Environment will made guidelines available around Easter that set out full details of the legislation as not all the Regulations have yet been finalised. 

The Government has proposed the following penalties and fines for the smoke free offences set out in the Health Act 2006;

* Smoking in a smoke free premises or vehicle; a Fixed Penalty Notice of £50.00 (discounted to £30.00 if paid in 15 days from the issue of a Notice) or a fine not exceeding 200.00;
* Failure to display no smoking signs in smoke free premises and vehicles as required by smoke free legislation; a Fixed Penalty Notice of £200.00 (discounted to £150.00 if paid within 15 days from the issue of a Notice) or a fine not exceeding £1,000.00;
* Failing to prevent smoking in a smoke free premises or vehicle; a fine not exceeding £2,500.00.

There is no provision in the smoke free legislation for smoke free offences to result in a review of a pub’s licence.  The Government believe that the penalties are a sufficient deterrent and perhaps rather optimistically expect that pubs and other hospitality venues will want to comply with the legislation in order to make their premises a better and more healthy place to visit and work. 

The new laws will be enforced by local authorities and for those who may be wondering whether those authorities will be relying on people’s sense of civic duty and hoping that an employee will report an associate seen smoking in a company vehicle or a publican permitting smoking in his bar, the answer is yes.  A phone line will be created to support local authorities in building compliance in their local area.

The Government is, however, keen to stress that the approach to enforcement will be non-confrontational, focussed on raising awareness and understanding to ensure compliance.  It is expected that enforcement action will only be taken when efforts to encourage compliance have failed.  Indeed, it may be of some comfort to employers and publicans to know that they cannot be prosecuted if it can be ascertained that they either took reasonable steps to cause the person in question to stop smoking or that they did not know or could not reasonably have been expected to know that the person in question was smoking.

Further information in relation to the new legislation is available at http://www.smokefreeengland.co.uk/.

Apr 07