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There are less than 4 weeks to go until England goes smoke-free on 1 July 2007. From that date, non-compliance with the smoke-free laws will be a criminal offence. It will be an offence both for employees to smoke, and for employers to fail to prevent smoking, in the workplace and in work vehicles.
Offenders will be liable to fixed penalties, which must be paid within 29 days of the date on which the penalty notice is given (or within 15 days to benefit from a discounted rate), or a fine on prosecution and conviction by a Court. The key offences, and the maximum fixed penalties/fines, are as follows:
- Smoking in smoke-free premises, places or vehicles: the person smoking will be liable to a fixed penalty of £50 (reduced to £30 if paid within 15 days), or a maximum fine on conviction by a Court of £200;
- Failing to display the requisite no-smoking signs in smoke-free premises, places or vehicles: anyone who occupies or is concerned with the management of the smoke-free premises, place or vehicle is liable to a fixed penalty of £200 (reduced to £150 if paid within 15 days), or a maximum fine on conviction by a Court of £1,000;
- Failing to prevent smoking in smoke-free premises, places or vehicles: anyone who controls or is concerned with the management of the smoke-free premises or place, or who is the driver of, has management responsibilities for, or is responsible for order or safety on any smoke-free vehicle, is liable to a maximum fine on conviction by a Court of £2,500; there is no fixed penalty for this offence.
So where will smoking be allowed?
Smoking will be banned in all enclosed, or substantially enclosed, smoke-free premises, namely any premises that:
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are open to the public (whether or not by invitation or on payment), and/or |
| (b) |
are used as a place of work, including voluntary work, by more than one person (even if they work at different times or intermittently), and/or |
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members of the public may attend in order to receive goods and services. |
The legislation allows for additional places, which fall outside the above categories, to be classified as “smoke-free”, although no such places have been legislated for to date.
Premises are “enclosed” if they have a ceiling or roof and, apart from doors, windows or passageways, are wholly enclosed whether temporarily or permanently. “Substantially enclosed” premises have a ceiling or roof, and an opening in the walls (not including windows and doors) that is less than half the overall area of the walls – the so-called 50% rule. Any other structures that serve as a wall or part of the perimeter of the premises/fixture must be included when calculating the overall wall area (for example, the wall of an office building to which an exterior smoking shelter is attached).
The ban therefore affects all offices, restaurants, theatres, indoor arenas, stadium/sports grounds with closed roofs, temporary fixtures such as tents/marquees, and partially enclosed fixtures like porches, bus and smoking shelters. There are only a limited exceptions.
One such exception relates to the performance of a play, or a performance given in connection with the making of a film or television programme. Where the artistic integrity of the performance makes it appropriate for a person taking part in it to smoke, that performer, but only that person (and not, for example, crew or audience members), is allowed to smoke during the performance in the otherwise smoke-free premises. Unfortunately, the legislation has not yet clarified whether this exemption also applies to rehearsals.
As private dwellings do not have to be smoke-free - apart from any communal areas - most homeworkers should still be able to smoke in their “office”, but only if they work alone. If one or more people (who do not live at the dwelling) use the dwelling solely for work purposes, or if people other than those working or living at the dwelling are invited there for work purposes, then, subject to a few limited exceptions, it will have to be a smoke-free zone.
Other exemptions include designated smoking bedrooms in hotels and members’ clubs, designated smoking rooms in care homes and hospices, and specialist tobacconists.
What about smoking in cars?
Smoking will also be banned in any enclosed vehicles - that is, enclosed wholly/partly by a roof (including a canvas or other covering), and by any door or window that can be opened - used in the course of paid or voluntary work by more than one person (whether or not they use the vehicle at the same time), or used by the public (whether or not for payment/hire).
The ban will clearly cover public or privately hired buses/coaches, taxis, delivery vans and pool cars. The position is less clear where employees are provided with company cars for private and business use. Smoking may still be allowed in the vehicle if it is primarily used for private purposes, and the employee owns, or has a legal right to use the car, which is not restricted to a particular journey. The point at which the level of business use takes the vehicle outside of this exemption is not clear in the legislation and will no doubt have to be clarified in the case law.
Signs
Anyone who occupies, or is concerned in the management of smoke-free premises is under a duty to ensure that no-smoking signs are displayed in a prominent position at each entrance to the premises. The signs themselves must be at least A5 size, display the familiar no-smoking symbol, and contain the words "No Smoking. It is against the law to smoke in these premises.” The words “these premises” can be replaced with a reference to the particular smoke-free premises, for example “these studios” or “this office”. Provided that the premises display at least one of these A5 signs, smaller signs consisting only of the no-smoking symbol itself can be used at the entrance to smoke-free areas of the premises that are only used by members of staff or, are located within larger smoke-free premises (for example, individual shops within an indoor shopping complex).
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| Anyone with management responsibilities for a smoke-free vehicle is also under a duty to display no smoking signs. However, the sign need only show the no-smoking symbol itself, provided that a sign is displayed in a prominent position in each compartment of the vehicle. |
So what happens next?
Given employers’ duties to prevent smoking in the workplace, there are a number of steps that should be taken to prepare not only the workplace, but also the workforce itself, for the ban.
In addition to putting up the relevant signs, employers should make staff aware of the smoking ban, their responsibilities in this respect, and any consequent changes to the workplace or the terms of their employment. For instance, all indoor smoking rooms will have to be removed. There is no right to smoke at work, and addiction to nicotine does not qualify as a disability in respect of which employers might have a legal duty to make reasonable adjustments to accommodate the addiction. Accordingly, there is no corresponding duty on employers to provide smoking facilities, but some employers may want to consider erecting outdoor smoking shelters for their workforce (taking care that the shelter is not a “substantially enclosed” fixtures, nor positioned somewhere that may be unpleasant for clients or other employees).
If they do not already have one in place, consideration should be given to the implementation of a no-smoking policy that makes it clear, amongst other things, where smoking is/is not allowed, and how non-compliance will be dealt with. As it is a criminal offence to smoke in a smoke-free zone, it is not unreasonable for breach of the smoking ban constitute an act of misconduct, and perhaps even gross misconduct.
Kiersten Lucas
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Simkins' early warning bulletins are for general guidance only. Legal advice should be sought before taking action in relation to specific matters. Where reference is made to Court decisions facts referred to are those reported as found by the Court. Please note that past bulletins included in the Archive have not been updated by any subsequent changes in statute or case law.
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