Which areas must be smoke free?
All premises will have to be smoke free, if they are:
- Enclosed or substantially enclosed.
- Open to the public or a place where the public might attend to receive goods or services from person working there.
- Used as a workplace by more than one person (even if the employees work at different times)
Enclosed premises mean those that have a ceiling or roof and, save for windows, doors and passageways, are wholly enclosed either temporarily or permanently.
Substantially enclosed premises are those which have a roof or ceiling and which are at least 50% surrounded by walls. In other words, these will be premises that have an opening in the walls (disregarding doors, windows or other fittings that can be opened or shut), which is less than half of the total wall area.
Most restaurants, bars, offices, galleries, museums, factories, shops and hospitals will be smoke free. However, the law also applies to temporary structures, so even tents and marquees may be covered if they are places of work or open to the public.
The smoking ban applies not just to premises, but also to the following work vehicles:
- Vehicles that are used in the course of paid or voluntary work by more than one person, even if those people use the vehicle at different times – e.g. vans, delivery vehicles, pools cars.
- Vehicles used by public e.g. buses, trains, taxis
Vehicles provided to employees as a “perk” as part of their benefits package may be covered by the law unless used “primarily for private purposes”. Such usage may be difficult to establish if there is some business use of the car and employers may prudently decide to classify such vehicles as smoke free.
Are there any exemptions?
There are some limited exemptions the key ones being:
- Hotels, guest houses and hostels may designate specific smoking bedrooms.
- Care homes, hospices and prisons can have designated smoking rooms and bedrooms
- Residential mental health units can have designated smoking rooms and bedrooms, but only until 1st July 2008.
- Specialist tobacconist shops may allow customers to sample cigars or piped tobacco.
The ban does not apply to private dwellings so a home worker who works alone may smoke. However, if the home worker invites others into their home for reasons connected with work then they must comply with the ban. In addition, any communal areas in shared premises e.g. lifts, stairs and kitchens will be covered by the legislation. Similarly, a works vehicle which is only ever driven by one person and which does not carry passengers will not be covered. Importantly, drivers of those vehicles that are covered by the ban will be unable to agree with other occupants that smoking is allowed.
Penalties and Responsibilities
Anyone who manages or is in charge of smoke free premises or vehicles is personally responsible to ensure those places are smoke free. Local councils will be responsible for enforcing the new laws and it is hoped that they will work with businesses to assist compliance. Failure to comply with the new laws is an offence, the three key offences under the new law are:
Event | Penalty |
Failing to display no smoking signs | Fixed penalty of £200, maximum £1,000 fine on conviction |
Smoking in a smoke free place | Fixed penalty of £50, maximum fine on conviction is £200 |
Failing to prevent smoking in a smoke free place | A fine up to £2,500 if prosecuted. |
Preparing for the ban
1. Signage
All premises or vehicles affected by the new law must display no smoking signs. The signs must be of a specific size (A5) and show the international no smoking symbol. Signs for premises must contain the words “No smoking. It is against the law to smoke in these premises” and be placed at every public entrance. Smaller signs without the wording can be used at staff entrances or within smoke free premises. Signs in vehicles must be displayed showing the international no smoking sign and be in each compartment carrying people. Suitable signs can be downloaded and printed or ordered from www.smokefreeengland.co.uk.
2. Staff
Educate staff about the smoking ban and devise a policy (or update an existing policy) on smoking. This should be circulated to all employees and should explain where smoking is and is not allowed; who the policy applies to i.e. staff, visitors and customers, etc); how to deal with persons who are smoking on smoke free premises; disciplinary offences relating to smoking and who is responsible for implementing them (disciplinary rules and procedure may need to be updated). Since employers have a legal duty to prevent smoking in the work place, it is essential that disciplinary action is taken against staff who are found to be ignoring the ban. Whilst dismissal for a first offence may be heavy handed. A written warning may be appropriate – each case must be decided on its facts.
Consideration should also be given as to whether or not employees will be allowed time off for smoking breaks, if this will paid and how non smokers will be treated by comparison. Will a smoking shelter be provided and/or support to give up smoking?
3. Customers/visitors
The use of the required signs should make it clear to all persons in a smoke free vehicle or premises that smoking is not allowed. However, what if someone lights up anyway? Businesses should simply follow the procedures they already have in place for dealing with unacceptable behaviour. Staff should be trained on these procedures together with how to manage the risks associated with tackling a smoker e.g. assault, verbal abuse, etc. Staff should be educated that they cannot agree with another person that smoking can take place.
A telephone line will be in operation from 1st july 2007 to enable members of the public to report possible breaches of the law and to provide advice and guidance. The Government has also produced a handy flow chart on how to deal with “illegal smokers”. See www.smokefreeengland.co.uk
This article is a brief summary of the law in this area only. If you would like more advice on this topic or assistance with preparing policies and procedures, please contact Suzanne Brookes at our Barnstaple Office on 01271 324273, or email her at suzannebrookes@peterslaw.co.uk