Smoke free - are you ready

by Hazel Phillips

Although it has been almost a decade since there was widespread smoking in the workplace, the Health Act 2006 and the Smoke-Free (Premise and Enforcement) Regulations 2006 bring into force a ban on smoking in all enclosed places to which staff or the public have access.  From 1 July the legislation will only permit 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. Fog swamped offices may already be a thing of the past but the legislation also “calls time” on designated smoking areas and smoking rooms.

Perhaps more important to take on board, is the fact that the legislation covers any enclosed workspace which means that company vehicles will also become smoke free.   Even an employee’s private vehicle will be covered when the employee is using it in the course of their duties and employers are under a duty to make employees aware of this.  It is worth stressing that even if two smokers are in the car, if they are travelling together on work business, smoking in the car would be unlawful.  In addition, the fact that an employee consented to their colleague smoking in the car will be irrelevant.

Despite appearances to the contrary, the legislation is not designed to stop people smoking.  Its primary objective is to combat the health risks of second-hand or passive smoking so 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.

Another important issue to consider is the “fag break”.  As the smoke free environment has become the norm in most workplaces, non-smokers have been forced to accept that smoking colleagues enjoy extra breaks during the day to smoke.    Most employers have accepted these odd breaks without comment provided the privilege is not abused.  However, now that smoking at work will be unlawful could an employer refuse to allow employees to take these breaks? 

These breaks are rarely an express contractual right but are likely to have become an implied right through “custom and practice”.  It could be a breach of contract to deny the employees such breaks but as the government’s aim is to encourage people to quit, taking steps to limit breaks is likely to be supported.  Nevertheless, any change should be handled sensitively following consultation to minimise the risk of constructive dismissal claims.

In most cases, employers will not be seeking to ban smoking completely but may wish to use this change in the law to reduce smoking because of the undoubted health impacts on the workforce.  The National Institute for Health and Clinical Excellence (NICE) is encouraging employers to offer help to those who want to quit and, with 86,500 deaths attributed to smoking each year in England alone, this is certainly a laudable aim.  However, offering advice as to where such help and support can be obtained is sufficient.  Although NICE has suggested that employees be given paid leave to attend stop smoking clinics, and has even gone so far as to suggest that employers contribute towards nicotine patches, such measures are not obligatory and employers should be cautious to ensure that any assistance offered is available to all.

The legislation also 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 signs (even in vehicles) 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 your duties under the regulations.

Employers need to take the legislation seriously because the following penalties will apply:

* 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.

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 so that the public can “shop” those who do not comply but the Government believe that the penalties will be sufficient deterrent and, perhaps rather optimistically, expect that businesses will want to comply with the legislation in order to make their premises a better and more healthy place to visit and work. 

The Government is, however, keen to stress that the approach to enforcement will be non-confrontational, focused 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 to know that they cannot be prosecuted if it can be ascertained that they either took reasonable steps to stop the person in question smoking or that they did not know or could not reasonably have been expected to know that the person in question was smoking.  How did you show that your business took reasonable steps?  Get a policy in place, re-issue an existing policy and flag up the legistative changes to all employees.

Further information in relation to the new legislation is available at www.smokefreeengland.co.uk or from Hazel Phillips on 01228 552222.

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