FL Memo Ltd © 2007

Employment  Memo 2007 Newsletter Issue 2

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FOCUS ON

Smoking ban

Since 1 July 2007, it is illegal to smoke in England in a place which is required to be smoke-free and importantly it will also be illegal for employers to fail to prevent smoking in smoke-free places (s 7 Health Act 2006; Smoke-free (Premises and Enforcement Regulations) SI 2006/3368). Smoking has been unlawful in such places in Scotland (since March 2006), Wales (since 2 April 2007, Smoke-free Premises etc. (Wales) Regulations SI 2007/287) and Northern Ireland (since 30 April).

All enclosed or substantially enclosed places which are open to the public or are a workplace for more than one person must be smoke-free. An enclosed space is defined as one which has a ceiling or roof, and which (except for doors, windows and passageways) is wholly enclosed (either permanently or temporarily). Workplace toilets fit within this definition. A substantially enclosed place includes premises with a ceiling or roof where there is an opening in the walls, or an aggregate area of openings in the walls which is less than half their area. This definition is wide enough to include tents, marquees and smoking shelters on the outside of buildings that are not compliant. 

Work vehicles and vehicles used by members of the public will also be required to be smoke-free (s 5 Health Act 2006). A vehicle is affected by this rule if it is used by members of the public or if it is used as a work vehicle by more than one person, even if those persons use the vehicle at different times or only intermittently (reg 11 Smoke-free (Exemptions and Vehicles) Regulations SI 2007/765). A van driver, who is the only person to use his van, will not be committing any offence if he smokes, but where the driver works with a companion, he will be committing an offence.

It is likely that certain spaces will be exempt from the ban. Prisons will be exempt, rooms in care homes and mental hospitals, private homes and common spaces in social housing when used as workplaces by people who do not live in them, for personal care, domestic work, work to maintain the structure of fabric of the dwelling, or work to install, maintain or service the dwelling (Smoke-free (Exemptions and Vehicles) Regulations SI 2007/765).  Accommodation for guests and club members in hotels, guest houses, inns, hostels and members’ clubs will also be exempt, as will be bedrooms in residential accommodation, the shops of specialist tobacconists and designated rooms in offshore installations. In addition, venues will be exempt where an artistic performance requires a person to smoke (Smoke-free (Exemptions and Vehicles) Regulations SI 2007/765). In other words, if the BBC films a historical drama, the actor playing Winston Churchill will be free to smoke a cigar.   There will also be exemptions for private vehicles when they are not being used for work purposes (Smoke-free (Exemptions and Vehicles) Regulations SI 2007/765).

Employer liability

It will be the duty of an employer to stop a person smoking in smoke-free premises  (s 8 Health Act 2006). Three defences are open to the employer:

- that he  took reasonable steps to cause the person to stop smoking;

- that he  did not know, or could not reasonably be expected to know, that a person was smoking; or

- that on other grounds it was reasonable not to comply with the duty.

The Health Act also requires employers to erect no-smoking signs in smoke-free places. At each entrance to such premises, a sign of at least A5 size must be displayed showing the no-smoking symbol, and carrying the words, “No smoking. It is against the law to smoke in these premises” (Smoke-free (Signs) Regulations SI 2007/923). The rules regarding no smoking signs will apply to vehicles. People with responsibilities for vehicles will be required to ensure that each compartment of a vehicle displays a sign. The term “compartment” is designed to cover, for example, in a taxi, both the driver’s area and the passenger area as separate compartments. A no-smoking sign will be required in each (slightly different rules concerning no-smoking signs apply in Wales, see the Smoke-free Premises etc. (Wales) Regulations SI 2007/287).                                                                                    (page 1 of 3)