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Legal Info on the Smoking Ban

…From Herbert Smith Employment Law e Bulletin

Posting date: 16th August 2007 09:50

I thought I should pass on this free legal info from a big city firm regarding the Smoking Ban. My advice is to get your shaded area sorted with Parasols or Awnings!

Smoke-free England

From 1 July 2007, England went “smoke-free” upon the introduction of the Health Act 2006 and associated regulations (the “Regulations”) which ban smoking in all public indoor spaces, including workplaces. The Regulations came into force on 1 July 2007 with a key aim of “reducing exposure to hazardous second-hand smoke and the overall smoking rate”.

Therefore, employers who manage, or are in charge of any premises or vehicles that the new law applies to will have a legal responsibility to ensure the premises or vehicles become and remain smoke-free. In the Briefing below, we have set out the main provisions contained in the Regulations and have considered some practical implications. Please contact us if you would like more information.

1. Definition of Smoking

The ban applies to all substances which can be smoked, including cigarettes, roll-ups, pipes and cigars. Smoking includes being in possession of lit tobacco or any other lit substance in a form in which it could be smoked. (Therefore, there is no defence under the Regulations that a person did not inhale.)

2. Smoking ban

The smoking ban will apply to all ‘enclosed’ or ‘substantially enclosed’ public places and workplaces.

‘Enclosed spaces’ are defined as spaces which have a ceiling or roof, and which, except for doors, windows and passageways, are wholly enclosed (either permanently or temporarily). Accordingly, if any workplaces still have a smoking room, this will no longer be allowed to operate in this way.

‘Substantially enclosed spaces’, are defined as premises with a ceiling or roof where there is an opening (or openings) in the walls which is less than half of the total area of the walls. The area of the opening does not include doors, windows or any other fittings that can be opened or shut. Employers should consider whether any existing (or proposed) smoking shelter is likely to be deemed to be substantially enclosed.

For those working from home, any part of a private dwelling-house used solely for work purposes will be required to be smoke-free at all times if: (i) it is used by more than one person (even if the persons who work there do so at different times, or intermittently); or (ii) members of the public attend to deliver or to receive goods and/or services.

There are some exemptions under the Regulations, such as places of work that have a residential function (e.g. hotel rooms or rooms in residential care homes). The terms of the exemptions are specified in the Regulations.

3. Work vehicles

Vehicles that are used primarily for private purposes will not be required to be smoke-free. However, vehicles must be smoke-free at all times if they are used in the course of paid or voluntary work by more than one person regardless of whether or not the person is in the vehicle at the same time. Therefore, if a vehicle (including a company car that is used privately at weekends) is used by any other passenger or driver for work, smoking will be prohibited in the vehicle at all times. Vehicles used to transport members of the public are also required to be smoke-free at all times. Buses, tubes and trains have been smoke-free for some time but under the Regulations taxis and private hire vehicles must also now be smoke-free.

All vehicles are required to display a sign indicating they are ‘No Smoking’ in each compartment of the vehicle in which people can be carried. Drivers of company vehicles have a legal responsibility to stop anyone from smoking inside the vehicle. This responsibility also applies to anyone with a management responsibility for company vehicles.

4. No-smoking signs

Anyone in charge of smoke-free premises is obliged under the Regulations to display no-smoking signs in a prominent position at each entrance to such premises. The signs must clearly display the ‘no smoking’ symbol and state “No Smoking”. It is against the law to smoke in these premises” and must be a minimum of ‘A5’ in size. Signs can be downloaded here.

In smoke-free vehicles there is no set format to the signs, provided, they are in a prominent position in each compartment of the vehicle, display the “no-smoking” symbol and are at least 70mm in diameter.

5. Sanctions

Breaches of the Regulations are criminal offences and give rise to fixed penalties or fines. There are three different offences:

Offence One – Smoking in a smoke-free place

Who is liable? – Anyone who smokes in a smoke-free place

Fixed penalty notice (if paid in 15 days) – £30

Fixed penalty notice (if paid in 29 days) – £50

Court awarded fine – Up to £200

Offence Two – Failing to display required no-smoking signs

Who is liable? – Anyone who manages or occupies the smoke-free premises or vehicle

Fixed penalty notice (if paid in 15 days) – £150

Fixed penaly notice (if paid in 29 days) – £200

Court awarded fine – Up to £1,000

Offence Three – Failing to prevent smoking in a smoke-free place

Who is liable – Anyone who manages or controls the smoke-free

premises or vehicle

Fixed penalty notice (if paid in 15 days- n/a

Fixed penaly notice (if paid in 29 days) – n/a

Court awarded fine – Up to £2,500

Anyone who receives a fixed penalty notice can choose to have the matter dealt with by a court. If a person does not pay a fixed penalty notice, the matter may also be referred to a court.

Where an employer is faced with being found guilty of the offence of failing to prevent smoking in a smoke-free place, three defences might apply: (i) that he took reasonable steps to cause the person to stop smoking; or (ii) that he did not know and could not reasonably have known that the person in question was smoking; or (iii) on other grounds it was reasonable not to comply with the duty. In this regard, if an employer has introduced a No-Smoking Policy, it will be important to show that reasonable steps were taken to enforce this policy and to deal appropriately with any breaches.

6. Enforcement

The Regulations are enforced by local councils who have the power to enter premises or board vehicles to determine whether the Regulations are being complied with. That is, unless you are within the area enforced by Stoke on Trent council who, due to an administrative error which hit the headlines, are currently powerless to enforce the Regulations.

7. Practical considerations

As a first step, employers should consider the introduction of a No-Smoking Policy which, as a minimum, outlines the requirements of the Regulations. If an employer goes beyond the requirements of the Regulations, this is entirely at their discretion. For example employers could introduce a blanket ban on smoking in company vehicles (regardless of whether they are used by more than one person) and on all company premises and grounds (whether enclosed, substantially enclosed or entirely open). In this way, a No-Smoking Policy could be introduced as part of a workplace health initiative and could be coupled with counselling sessions for those who wish to give up smoking, or the provision of other support services such as assistance with the cost of nicotine patches or gum.

In addition, care should be taken in delivering messages to employees if altering working practices as a result of the Regulations and any changes to working practices should ideally be carried out by way of consultation with employees whether through a collective body or on an individual basis.

If employers are considering providing an outdoor facility for smokers to use, it must be designed to ensure it is not substantially enclosed. If employers wish to introduce smoking breaks for smokers, they might wish to limit such breaks to ensure productivity is maintained. Also, the introduction of smoking breaks could potentially cause unrest amongst the non-smoking workforce. As an alternative, employers could provide breaks of similar lengths to non-smokers or ask smokers to make up this time at the end of the day. Also, employers should consider amending their disciplinary procedures and any applicable codes of conduct to list smoking in smoke-free premises / vehicles as an act of misconduct. Any such amendment can be communicated to staff through the consultation process in relation to the No-Smoking Policy (which can also list such offences as amounting to misconduct).

Training should be given on the No-Smoking Policy (and how breaches should be reported and/or dealt with). Caution should be exercised in respect of disciplining individuals who are in breach of the legislation or of the company’s smoking policy. For example, smoking on smoke-free premises might not amount to gross misconduct, and this would depend on the individual circumstances, including for example whether or not it is set out as such in a widely available company No Smoking Policy. Companies should also consider lesser sanctions such as warnings, particularly for a first offence.

The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances.

Herbert Smith LLP, Gleiss Lutz and Stibbe are three independent firms that have a formal alliance.

© Herbert Smith LLP 2007