Off the record: What will the smoking ban mean for our office?

Annie Hayes

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Off the record: What will the smoking ban mean for our office?

By Annie Hayes

A blanket ban on lighting up at work and in other public spaces has been proposed by the government so what should employers do in preparation for kicking the habit? Emma Capper, Associate at Reed Smith employment law firm reports.

Through the Draft Health Bill, the government is proposing to introduce a total smoking ban in the workplace and other enclosed public spaces, with the objective of improving the nation’s health.

The smoking ban will come into force in Summer 2007, and all employers should prepare a non-smoking policy ready for implementation.

The Bill bans smoking in premises that are open to the public or used as a place of work by more than one person. It also includes areas where members of the public might enter the premises for the purpose of seeking or receiving goods or services. It also includes premises where voluntary work is performed.

Smoke-free premises:
So far the ban covers premises that are ‘enclosed’ or ‘substantially enclosed’ and used wholly or partly as a workplace. Where only part of the premises is used as a workplace, only that part is smoke-free.

‘Enclosed’ means spaces that have a ceiling or roof and which except for doors, windows and passageways, are wholly enclosed, whether permanently or temporarily.

‘Substantially enclosed’ means spaces that have a ceiling or roof and the walls of which cover an area greater than that of its openings. This would include warehouse spaces where one end of the space is more or less permanently open during working hours for the purposes of loading and unloading.

Separate provisions cover premises serving food. These may allow smoking provided they have clearly signed and physically separate smoking and non-smoking areas, adequate ventilation and no employee is forced to work in the smoking area.

The Bill also covers vehicles which are used for work purposes. The Bill proposes that where a vehicle is being used by only one person at a time, it would not need to be smoke-free. This underlines the purpose of the Bill to protect employees from passive smoking, rather than prohibiting smoking altogether.

Offences and obligations:
There is no obligation for employers or owners of premises to provide an outside smoking space. However, it is recommended that if employees must leave the building to smoke, cigarette disposal bins should be provided at entrances and exits and smoking areas should be made safe, i.e. not be too remote and be well lit. If these areas provide shelter from wind and rain, the employer must observe the requirement that the opening of the shelter must be larger than the area of its walls. If not, the shelter is deemed to be ‘substantially enclosed’ and, thus, smoke free.

There is an obligation on the employer to ensure that prescribed no-smoking signs are displayed and to take steps to prevent smoking in a smoke-free place. An employer’s failure to prevent smoking and/or to display no-smoking signs will amount to a criminal offence and attract a fine.

The Bill does not stop employers from implementing a completely smoke-free policy, inside and out. This appears to be allowed and even encouraged.

It has recently been reported that the government is even considering banning smoking at certain public outside spaces where lots of people might be in close proximity to one another. Such places might include bus stops, sports stadia and even the outside of office buildings. The Bill in its current form gives powers to the government to do this, but so far the plans to extend the ban have not been finalised.

Individuals who knowingly smoke in a smoke-free area, are committing a criminal offence and are liable to a fine. The fines are to be fixed and they will be specified in later regulations made by the Secretary of State. It is likely that the government will publish guidelines on non-smoking policies and how to enforce them, as well as where and how to display no-smoking signs.

In summary, all employers should prepare a non-smoking policy that will be ready for implementation at the very latest when the smoking ban becomes law in summer 2007. Some are taking steps to put policies in place already now, in keeping with the spirit of the Bill.

For further information please contact Emma at ecapper@reedsmith.com or visit www.reedsmith.com

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