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Nominated Charity
NO SMOKE WITHOUT FINE ! !
Norman Rea, F.Inst.L.Ex Chairman of Birmingham & District Ilex and Head of Employment Law at Tamworth solicitors Rutherfords blows away the smoke and myths surrounding the forthcoming smoking ban.
By virtue of the Health Act 2006 all public places and work places in England will become smoke free from 01 July 2007.
From March 2006 all enclosed work places in Scotland became smoke free.
The Welsh Assembly introduced a smoking ban with effect from the 02 April 2007 and Northern Ireland followed suit with effect from the 30 April 2007.
WHAT PREMISES ARE AFFECTED?
All “enclosed” or “substantially enclosed” public places and work places, such as factories, offices, bars, restaurants and public transport will be affected.
“SUBSTANTIALLY ENCLOSED”
Premises will be considered to be “substantially enclosed” if they have a ceiling or roof and more than 50% of the premises’ perimeter is enclosed by walls.
COMPANY VEHICLES?
The legislation extends to company vehicles unless they are used by just one employee. This means that pool cars will be covered by the ban even if all the employees sharing the company vehicle are smokers.
PENALTIES AND ENFORCEMENTS
Employers or occupiers of premises will be legally obliged to display prominent No Smoking signs which must be in prescribed format (A5) and use specified wording.
The A5 signs must be displayed at each entrance to smoke free premises displaying the No Smoking symbol and the words “No Smoking. It is against the law to smoke on these premises.”
If the law is ignored and someone is reported smoking the occupier/employer could be liable to a fine of up to £2,500.
Failure to display the appropriate sign could result in a fine of up to £1,000.
Anyone smoking in a smoke free area could face a fine of up to £200.
EXCEPTIONS
Smoking can be allowed in private residential spaces within adult hospices, prisons and long stay adult residential care facilities together with other enclosed spaces that act as a person’s dwelling.
Smoking can also be allowed if only one person works in a place and it is not open to the public.
There is no general exemption allowing employers to have designated “smoking rooms”.
WHAT STEPS SHOULD BE TAKEN?
In order to avoid exposing themselves to a fine under the Act employers need to implement appropriate procedures to ensure members of staff and indeed the public who access their premises refrain from smoking.
It will be sensible to ensure that ‘no smoking signs’ are clearly visible to all employees, customers and visitors to the premises including toilets and staff rooms together with the statutory requirement that the A5 signs mentioned above are clearly displayed at all entrances/exits.
It would be helpful if employers clearly identified to their staff all areas where smoking will be unlawful.
SMOKING SHELTERS
Employers can no longer have smoking rooms inside their premises.
It is important to highlight the fact that employers are under no legal obligation to provide facilities for smokers. This is left to the discretion of individual businesses. Note however that, in many cases, whatever the good intentions of the employers/occupiers of premises, it will be at the discretion of the landlord’s of business premises whether to give permission for the erection of shelters.
There has been some intriguing and ingenious questions raised about the ban which can be itemised as follows:
Question:
I know that I am going to have problems with one or two staff who have always smoked at work and now see it as their right.
Answer:
As an employer you cannot ignore the ban and there can be no exceptions. If you do not take reasonable steps to actively enforce the ban you could face fines of up to £2,500. It would be sensible to ensure that staff are fully aware that you intend to make smoking at work (in non designated areas if you provide them) a disciplinary offence.
Question:
I have been smoking man and boy for over 35 years, I have tried to give up on many occasions but I am completely addicted. Can’t I make a claim under the Disability Discrimination Act if my boss forces me to stop smoking at work?
Answer:
Nice try! Addiction to nicotine is not covered under the Act.
Question:
I have some long standing and profitable customers who regularly smoke when visiting my office. I do not want to insult them or lose their business.
Answer:
Draw their attention to the “No Smoking” sign and ask them to stop. Perhaps if you explained to them that it is an offence by you to allow them to smoke on the premises and that both you and they will be subject to a fine this will have the desired effect.
Unfortunately, if they still refuse to stop smoking and regard it all as a bit of fun then you would be best advised to politely ask them to leave the premises or direct them to any designated area where they can have a cigarette before resuming the meeting.
There is no doubt this legislation is far-reaching and will have an impact on everyone’s social and work environment.
Anticipated uprisings in Scotland where the smoking ban was first introduced did not materialise and it appears to have been accepted.
ON A LIGHTER (SORRY) NOTE!
Public resentment to smoking and smoking bans are not new. In 1493 Rodrigo de Jerez (one of Columbus’s fellow explorers) became the first European to smoke tobacco. However back home after his travels, he was thrown into prison for 3 years by the Spanish Inquisition for lighting up in public!
In Turkey, Persia and India, the death penalty was once considered a fitting “cure” for smokers!
Smoker subjects of Michael Feodorovich (the first Romanov Csar) were punished by the slitting of their lips!
Perhaps, in light of past smoking penalties, the potential fines introduced by the Health Act do not appear so Draconian. However it would be wise to adhere to the new restrictions some of which are highlighted in this article and which are more particularly set out in the Act.
If you have further questions or need legal advice upon the implementation of smoking restrictions within the work place please do not hesitate to contact Norman Rea or Peter Wiseman at Rutherfords Solicitors Employment Law Division on 01827 311411.