16/03/2007

What the smoking ban means

Philip Paget, employment partner

March 14 was apparently No Smoking Day. Perhaps many of us will not have been aware of that, not least because so many workplaces are already smoke free. However, some employers saw it as an opportunity to encourage their employees to quit smoking as the big day approaches on July 1, the day when the new smoking ban comes into force.

From that date as a result of the implementation of elements of the Health Act 2006 almost all enclosed public places and workplaces must be smoke-free environments in England. Ireland and Scotland have had such bans for some time, and the ban will extend to Wales and Northern Ireland from April 2.

However, one published report claimed that there was significant confusion amongst employers as to the nature of their obligations. The report said that 72% claimed their organisation was already compliant with the forthcoming law, but almost half said they did currently still provide smoking areas for employees. Consequently, according to that survey, at least 24% of employers believe they are compliant, when in actual fact they are not.

So if you are an employer, just what do you need to do and what are your obligations? Do the rules extend to vehicles for instance? In short you must:

  • display ‘no smoking’ signs in smoke-free premises;
  • take reasonable steps to ensure that your staff, your customers and your visitors (and indeed your members, if you are a club) are aware that premises and vehicles are legally required to be smoke-free; and
  • ensure that no one smokes in smoke-free premises or vehicles (unless, in the case of vehicles, the vehicle is used by only one person).

But surely this is just a rule and no one is going to enforce it are they? Well, it will be a criminal offence to smoke or to permit smoking in these places. The regulations require those in charge of premises and vehicles to ensure smoking does not take place, through enforcement of the ban. If they fail in this respect then ultimately fines ranging between £30 and £2,500 can be levied on criminal conviction.

The rules require that specific prescribed signs are put up at every entrance to a work or public place, including staff only entrances and fire exits. They must be at least A5 in size with the no smoking symbol and specified wording. Similar rules apply to vehicles which is why for some time now signs have been apparent in taxis and minicabs for instance.

There are very limited exceptions to these rules so employers should take advice if they consider they are in a special category.

Is the smoking ban likely to be a bad thing for employers? No, according to one regional supermarket café which introduced a ban in 2006. The business publicised the fact that their café was to have smoking facilities removed in plenty of time to ensure that their customers knew about the change and to give plenty of notice those customers who did smoke in the café. They reported that over the first four weeks, following the ban they noticed a significant rise in customer numbers and in particular, an increased number of mothers and children as the café was seen as more family-friendly without those smoking facilities.

In Scotland, there have been a number of cases since the ban was introduced involving nightshift workers. In one business workers were forced to go without a cigarette during 10-hour shifts because internal smoking rooms were banned. Under company regulations, nightworkers were not allowed to leave the premises during their working hours for security reasons. Whilst technically no terms and conditions of employment were affected by the new legislation, the ban meant that a significant non-contractual change came about over one night meaning that smokers had to hold on for a 10 hour stretch without a smoke. Perhaps inevitably cases arose where workers were so in need of a cigarette that they breached the rules and were dismissed.

Employers need to be conscious of the knock on ramifications of the ban, therefore. Consider the implications of employees smoking outside your gates or premises and causing litter. Consider also what you will do if smokers disobey your rules as to whereabouts outside they can smoke and how many “breaks”, if any, they can take in a day for a smoke. How do such breaks impact on the non-smokers who don’t take breaks?

All in all the best advice if you do still allow smoking in your workplace is to look at the numbers of smokers involved, consider in consultation with them the impact of the new rules and draft a workable set of guidelines to move forward, considering at the same time the impact of the new rules both on other individuals and other workplace rules. Perhaps also, you should offer help and guidance to assist them to give up – for further information see the “Quit” website www.quit.org.uk. Who knows, if you don’t someone may eventually sue you on the basis that as the employer you should have helped them to help themselves!

For further information please contact Philip Paget at philip.paget@gordonsllp.com