On 1 July 2007 the Smoke-free (Premises and Enforcement) Regulations 2006 came into force in England.
This means that all employers have to provide smoke-free workplaces for all employees. The Health Act (2006) includes provisions to make enclosed public places and workplaces smoke-free. This article looks at how the new legislation affecta employers (and employees).
Enforcement
Local authorities are responsible for enforcing the new law and have the legal power to enter premises or board vehicles to determine if the new law is being upheld. The impact of the ban will be monitored closely and a review will be carried out at the end of three years.
In addition, a smoke-free workplace will shortly be a legal requirement, an employer who fails to provide this “healthy environment” for its employees may be exposed to possible claims from its employees (e.g. under duty of care).
Smoking prohibited in workplaces
The ban applies in all enclosed or “substantially enclosed” workplaces. Premises are considered “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. The ban also outlaws smoking rooms.
Vehicles
The new law requires vehicles to be smoke-free at all times if they are used:
to transport members of the public
in the course of paid or voluntary work by more than one person – regardless of whether they are in the vehicle at the same time
Smoke free vehicles will need to display a no-smoking sign. This must show the international symbol no smaller than 70mm in diameter.
Signage
Employers must ensure that the required “no smoking” signs are displayed and remain in place. Employers will be required to display an A5 size sign at all entrances, which contains the international “no smoking” symbol as well as the words
“No Smoking. It is against the law to smoke in these premises”.
Customers on your premises
Employers/employees should draw their attention to the 'no smoking' signs and ask them to stop. Tell them it's an offence for you to allow them to smoke and that they are committing an offence by smoking on the premises. If your customer continues to smoke, explain that staff will refuse to serve them if they continue to do so. If they still refuse to stop smoking, then ask them to leave the premises and where relevant, inform them about where they can smoke. If they refuse to leave, use your usual procedures for dealing with anti-social/ illegal behaviour on your premises.
Penalties: Employers
Failure to display a prominent no smoking sign will result in employers receiving a fixed penalty of up to £200.
If the fine remains unpaid or the penalty is challenged unsuccessfully then the fine may be increased to £1000 and may result in a criminal record.
Failure to prevent smoking in a smoke-free place may incur a Court awarded fine of up to £2,500.
Penalties: Employees
Any employee (or even a visitor to the premises) who is caught by a local authority smoking will receive a fixed penalty of £50. Court awarded fine of up to £200.
Who is exempt?
Hotels, inns, hostels, guesthouses and members’ clubs that provide sleeping accommodation may designate individual guest bedrooms for smoking, but all other parts of the premises must be smoke-free.
Care homes, hospices and prisons may designate either individual bedrooms or rooms to be used for smoking by persons over 18 years of age
Residential mental health units may designate either individual bedrooms or rooms to be used only for smoking for use by persons over 18 years of age, until 1 July 2008 when they are required to become smoke-free
Offshore installations may designate rooms to be used only for smoking
What should employers do now?
Employers who don’t already have a total smoking ban in place should consult with their employees (including trade union and employee representatives) and change or create new policies to meet the new legal obligations before the legislation comes into force (company vehicles should also be included). For example, let your staff know that your smoking room will be decommissioned in 4-6 weeks time.
Policies should state that employees are likely to face disciplinary action through the organisation’s disciplinary procedure. Also included should be a statement about the restrictions applying to both visitors and customers. Policies should be strictly enforced across the whole of the organisation to ensure it is taken seriously.
Organisations may need to decide what their new policy will allow, but there is no legal obligation for employers to provide facilities for smokers. The options are to provide an area outside (but on the premises) where employees can smoke, but designated signs should be displayed in these areas or employers can totally ban smoking anywhere on company property. Offering employees stop-smoking advice by way of useful telephone numbers or website addresses may also help support them to stop smoking in the lead up to the policy change.
