The Health Act 2006 places a smoking ban on virtually all enclosed public places and workspaces in the UK as of July 1 2007, which obliges employers to both prohibit and actively take steps to prevent smoking on their premises.
When does the smoking ban take effect?
The smoking ban is already in place in Scotland, but does not come into force in England until July 1 2007. In Wales and Northern Ireland the ban will be in place as of April 2007.
Will the ban affect my premises?
Yes, if your premises are ‘enclosed’ or ‘substantially enclosed’ and they are open to the public or used as a place of work. If only part of the premises is open to the public or (as the case may be) used as a place of work, the premises are smoke-free only to that extent.
Premises are ‘enclosed’ if they have a ceiling or roof and, except for doors, windows and passageways, are wholly enclosed either permanently or temporarily.
Premises are ‘substantially enclosed’ if they have a ceiling or roof with openings to the outside (excluding windows and doors or other fittings that can be opened or shut), which form less than half of the total wall area.
I have a smoking room on my premises. will this still be allowed?
No, you must ensure that you impose a complete smoking ban. It will be illegal to provide smoking areas in enclosed or substantially enclosed areas for employees or customers.
Can I allow my employees and customers to smoke outside of my premises?
You will need to decide whether you are going to ban smoking everywhere on your premises or whether you are going to provide a smoking area outside but still on your premises. If you do decide to provide an outside smoking area you must ensure that it is not substantially enclosed. A decking area, for example, which has openings in less than 50 percent of its total wall space and which also has a roof would still be caught by the Act.
What am I obliged to do in order to comply with the Act?
It is the duty of every person who controls or who is concerned with the management of smoke-free premises to stop people from smoking there. You are therefore obliged to take reasonable steps to stop your employees or customers from smoking on your premises.
What practical changes will I need to make in order to comply with the Act?
The Act requires you to display a ‘no smoking’ sign at each public entrance to the premises, which must be prominently visible to everyone entering the premises. The sign must:
Be a flat, rectangular sign with minimum dimensions of 148mm by 210mm (A5);
Display the international ‘no smoking’ symbol; and
State: “No smoking. It is against the law to smoke in these premises.”
You may also consider taking further steps to show that you have taken the ban seriously:
Review any existing agreements in place that deal with the sale of cigarettes (vending machines etc).
Train staff on how to deal with difficult customers or colleagues who refuse to abide by the ban.
Devise and implement a no smoking policy that spells out the consequences of breaching the ban and which is communicated clearly to all employees.
What if my customers refuse to stop smoking?
Given that the vast majority of people are law abiding, one would expect most people to comply with the ban of their own behest. However, you may find yourself in a situation where a customer refuses to put out their cigarette or to leave the premises. In this scenario, if you have taken all reasonable measures to prevent smoking you will not be held liable under the Act. There will also be a ‘shop-a-smoker’ hotline where you will be able to report the incident.
If you have taken reasonable steps to implement the smoking ban you will not be liable should an employee refuse to stop smoking on your premises. However, a key difference when it comes to employees who flout the rules is that you have the added opportunity to enforce the ban via your disciplinary procedures.
Be sure to bear in mind, however, that you will need to treat an employee’s breach of the smoking ban like any other disciplinary matter - employment legislation which is applicable to unfair dismissal will still apply and therefore any dismissal will still need to be fair.
As a further deterrent, employees should be warned that if they are caught by the authorities flouting the ban they could be liable to a £50 penalty.
This does not mean, however, that you may turn a blind eye by half-heartedly implementing the ban, since Environmental Health Officers are likely to have powers to enter your premises to check whether an offence has or is being committed and will be able to issue you with fixed penalty notices.
What will the consequences be if I fail to comply with the Act?
Unless you can show that you took reasonable steps to stop a person smoking on your premises, or you did not know and could not reasonably have been expected to know that they were smoking, you could be liable for a fine of £2,500. If you fail to comply with the no smoking sign provisions you could also be liable to pay a further £200.
Furthermore, whistle-blowing legislation is in place which would protect an employee who suffers a detriment or who is dismissed because they inform the authorities of your failure to enforce the ban. Should you be found guilty under this legislation a tribunal has the power to award a successful employee any amount which they believe is fitting.
What should I be doing now?
It might make sense to start preparing for the changes now and remember that you are already obliged to take reasonably practicable precautions to protect your employees from the effects of ‘passive smoking’.
If, along with approximately 50 percent of other employers in the UK, you already have a no-smoking policy, remember that you are still obliged to put the no smoking signs in place .
You might also consider doing the following:
Inform your employees and customers that as of July you are legally obliged to ban smoking.
Tell your employees and customers about any arrangements you are going to make for smokers, such as smoking areas outside.
Inform employees of how you intend to deal with non-observance of smoking restrictions. For example, will non-compliance be treated as gross misconduct?
Suggest to employees that should they decide to give up smoking entirely then they can seek help from occupational health services or local GPs at little or no cost.
Although the smoking ban will require your time and effort it is worth bearing in mind that it may also have a positive impact on your business. In addition, there are likely to be health benefits for employees which may lead to reduced sickness absence.
In the long run the smoking ban may prove to be a popular measure amongst employers, but as with all new legislation only time will tell how workable and effective it really is.
Jonathan Exten-Wright is a partner in the international law firm, DLA Piper.
For more information, visit http://www.smokefreeengland.co.uk.
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