Fears about the effects of smoking on health were first raised in the Lancet in 1858 and while cigarettes have dodged outright extinction since that time it looks as though the days of smoking at work are numbered; Ranjit Dhindsa, head of employment at the Midlands office of international law firm Reed Smith slaps on the nicotine patches and looks at what cold-turkey will mean for UK plc.

There has been great debate in the media recently about proposals to ban smoking in public places such as pubs and restaurants while there has been very little focus on banning smoking in workplaces.

The Government has proposed in its white paper Choosing Health – Making Healthy Choices Easier that there should be a ban on smoking in all workplaces in England by the end of 2007. On 5 September 2005 consultation in relation to the proposals ended, and Regulations are now being awaited by the general public and employers alike.

The current legal position is that there is no smoking ban as such. However, employers do have a duty under the Health and Safety at Work Act 1974 to ensure, as far as is reasonably practicable, the health, safety and welfare of all their employees. There have already been personal injury and constructive dismissal cases brought by employees who are not smokers themselves but who have been subjected to working in a smoky atmosphere, which they say breached the health and safety legislation or caused them ill health.

The Government believes that introducing a total smoking ban in workplaces as well as other public places will reduce the risk to health from exposure to second-hand smoke. Certainly the experience in other countries including Ireland, Norway, Finland, Sweden and Italy shows there has been a reduction in hospital admissions and improvement in workers’ health.

One of the issues for employers is going to be the definition of smoke. In Scotland smoke means smoke tobacco or any other substance or mixture which includes it. The issue is whether all types of cigarettes will be covered and whether employees will be able to argue that their cigarettes do not contain tobacco at all, but may for example be of a herbal variety.

The second issue for employers will be to enforce a no smoking policy in the workplace. Many employers have smoking rooms or designated areas which will have to be removed.

The Government is proposing three types of offences namely:

• Failing to display a no smoking notice in smoke free premises;




• Failing to act to prevent smoking in smoke free premises;




• Knowingly smoking in smoke free premises.

The penalties for employers will be £200. Enforcement will take place through local authorities who will have the power to inspect workplaces and bring prosecutions.

Whilst employers generally do not like to comply with new legislation, it appears that there may well be business benefits in complying with this new law. Many employers lose a lot of production time when employees take cigarette breaks. Further space used for smoking rooms can now be used for other things and cleaning costs will be reduced. Most importantly productivity should increase if employees are not taking ‘fag’ breaks and hopefully if health improves employee absence should decline.

However, there may be issues that employers need to consider more carefully such as what to do with employees who are addicted to smoking who in turn are not finding it easy to give up. Will employers be expected to provide support through occupational health? Will this inadvertently lead to further absences and management issues for employers to deal with? There may also be conduct issues for those employees who refuse to comply with the smoking ban.

The US is always a good place for comparison. Recently a company in Michigan went further and informed its employees that it will not tolerate smoking on or off the job. The company Weyco Inc announced that it would subject its employees to random breath tests to determine whether they had been smoking during or after work hours. It threatened to terminate the employment of those employees who refused to submit to the testing.

Whilst this might be going too far for the UK, it does illustrate the support for no smoking areas in the workplace, from employers and the Government alike.

Ranjit Dhindsa can be contacted at: rdhindsa@reedsmith.co.uk