In this article...

• Key points for premises
• Smoke-free vehicles
• What should you do to prepare for the ban?
• Penalties
• A right to smoke?
• Time off to attend courses
• Further information
• Training

As from 1 July 2007, England will become smoke-free. Rahim Amarshi reports on the action points for employers, which include putting up no-smoking signs, devising smoking policies and issuing guidance on whether staff are permitted to smoke in company vehicles.

A recent survey conducted by the Department of Health suggests that businesses in England are not fully prepared for the new smoking legislation, with 15 per cent unaware that their smoking room will have to be closed in less than two months’ time, and more than half oblivious to the fact that work vehicles will also be covered by the ban in certain circumstances. So what does the smoking ban mean for employers?

Key points for premises

All premises will have to be smoke-free if they are “enclosed or substantially enclosed” and are used as a workplace by more than one person (even if the people who work there do so at different times, or only intermittently), or if they are places where members of the public might attend for the purpose of seeking or receiving goods or services (even if members of the public are not always present).

“Enclosed” means any premises which have a ceiling or roof and are enclosed (disregarding doors, windows and passageways) either temporarily or permanently. “Substantially enclosed” means premises with a roof or ceiling and an opening (or openings) in the walls (disregarding doors, windows and other fittings that can be open or shut) which is (or are) less than half the total area of the walls.

This will mean that buildings such as office blocks, shops, restaurants, bars and hospitals will have to be smoke-free. However, the definition may also cover other, less conventional, enclosed spaces – for example, a marquee which is used for an event at which staff are working and is enclosed except for its entrance could also be caught by the new laws.

Smoke-free vehicles

Any vehicle which is not used primarily for private purposes and which is used in the course of voluntary or paid work by more than one person will have to be smoke-free, even if the people who use it are not in the vehicle at the same time and even if the vehicle is only used by more than one person intermittently.

This means that the new smoke-free laws will almost certainly apply to pool cars. However, the ban could also extend to cars which are provided to employees as part of their benefits package. The latter type of vehicle will be caught if it is not used primarily for private purposes and it is used to carry, even intermittently, more than one person in the course of work (for example, giving a colleague a lift to a meeting).

What should you do to prepare for the ban?

		You must display standard A5 no-smoking signs in a prominent position at all entrances to smoke-free premises. No-smoking signs will also have to be displayed in each compartment of smoke-free vehicles in which people can be carried. They must display the international no-smoking sign, which must be at least 70mm in diameter. Signs for premises must contain the words: “No smoking. It is against the law to smoke in these premises.”
		Best practice would be to devise (or update) a policy on smoking and circulate it to all employees. Such a policy could include, amongst other things, details on where smoking is and is not allowed (including a section in relation to vehicles), assistance available for employees who want to stop smoking, how to deal with customers or clients who are smoking on smoke-free premises and disciplinary offences relating to smoking.
		Consult any appropriate employee representatives about the ban on smoking and/or any smoking policy.
		Update your disciplinary policies and procedures to ensure that offences relating to smoking are included.

Penalties

Employers who fail to display the required no-smoking signs can be fined up to £1,000. Employers will also face fines of up to £2,500 if they fail to prevent a person smoking in smoke-free premises or a smoke-free vehicle.

A right to smoke?

Some employees have tried to argue in the past that they have an implied contractual right to smoke in situations where their employer has allowed them to smoke at work for a long time. In view of the new legislation, as long as employers engage in a suitable communication strategy with their employees prior to the introduction of the ban, claims based on a “right to smoke” argument are unlikely to succeed.

Time off to attend courses

Another frequently asked question is whether employers must allow employees time off to attend “quit smoking” courses. While there is no such specific legal obligation, the National Institute for Health and Clinical Excellence (NICE) has issued guidelines which recommend that employers should allow employees time off to attend courses.

This is based on the fact that, according to NICE, the benefits of employees stopping smoking (including reduced sickness absence and increased productivity) will outweigh any initial costs to the employer. However, many employers may feel that this would amount to no more than their money going up in smoke.

Further information

ACAS has issued a useful Q&A sheet which can be downloaded from its website (www.acas.org.uk). Further information can also be found at www.smokefreeengland.co.uk.

Training

Bevan Brittan have developed a comprehensive training programme to help companies compose and implement their non-smoking policies. If you would like further information, please don't hesitate to contact Sharon McCann or Rob Westwood-Payne in our licensing team.