Smoking ban: workplaces and company vehicles

David Appleton of Lewis Silkin begins a series of articles on the forthcoming ban on workplace smoking in England by looking at the legal requirements regarding workplaces and company vehicles.

The ban on workplace smoking is already in force in Scotland , Wales and Northern Ireland , and comes into force in England on 1 July 2007. Under the ban, it will be a criminal offence to smoke in virtually all enclosed public places and workplaces, on public transport and in work vehicles that are used by more than one person.

How is 'smoking' defined?

Under the Health Act 2006, smoking is defined as 'smoking tobacco or anything which contains tobacco, or smoking any other substance', and includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked.

This definition covers all forms of smoking, including cigars, pipes and shishas. Provided that the substance is lit, there is no need for it to be inhaled for it to be covered by the ban.

Where is smoking banned?

Smoking is banned in enclosed or substantially enclosed premises and in enclosed vehicles (with some exemptions - see below).

Premises

Premises are 'enclosed' if they have a ceiling or roof and, not including doors, windows and passageways, are wholly enclosed either permanently or temporarily.

Premises are 'substantially enclosed' if they have a ceiling or roof but have openings in the walls that make up less than 50% of the total area of the walls. Employers should ignore openings in which there are doors, windows or other fittings that can be opened or shut, when calculating the area of an opening.

The definition of 'roof' includes any fixed or moveable structure or device that is capable of covering all or part of the premises as a roof, including, for example, a canvas awning. Any premises without a roof are exempt from the ban.

Smoking is permitted in premises where only one person ever works and to which the public is never given access.

If the premises are only ever used by one person and the public is given access to them for reasons other than to seek or receive goods or services, smoking will be permitted in the premises when the public is not present. However, smoking is banned at all times in such premises if the public is given access to seek or receive goods or services.

Private dwellings

In general, the smoking ban does not apply to private dwellings. However, smoking is forbidden in any part of a private dwelling that is used solely as a place of work:

  • by two or more people who do not live there;

  • by someone who does not live there and someone who does live there; or

  • by one person who works there (whether that person lives there or not), and people who do not live there come to give or receive goods or services.

    • The only exceptions are where the work undertaken is solely to:

  • provide care for a person living in the dwelling;

  • assist in domestic work;

  • maintain the dwelling; or

  • install, maintain or remove services provided to the dwelling for the benefit of those living in it.

    • Vehicles

    Vehicles are 'enclosed' if they are enclosed wholly or partly by a roof and any door or window that may be opened. Smoking is banned, under the legislation, where the vehicle is enclosed and used by members of the public or a section of the public (whether or not for reward or hire) in the course of paid or voluntary work by more than one person.

    The only exceptions are where the roof is completely stowed away or where the vehicle is used primarily for the private purposes of a person who either owns the vehicle or has a right to use it that is not restricted to a particular journey.

    Smoking will therefore be banned in a company car only if it is shared by two or more employees (even if they do not use the vehicle at the same time). However, an employee who uses his or her own private car for work purposes will be allowed to smoke in it.

    Exemptions

    A designated smoking bedroom in a hotel, guesthouse, inn, hostel or members' club is exempt from the smoking ban provided that the room is only for sleeping in, is completely enclosed except for doors, which must mechanically close if they open into a smoke-free area and windows, is ventilated only to the outside or into another designated smoking bedroom and is clearly marked as a bedroom in which smoking is permitted.

    Dormitories, or other rooms that the management makes available for sharing, are not covered by this exemption and must be smoke free.

    Designated rooms in care homes, hospices and prisons that are used as accommodation for people aged 18 years and over are also exempt from the smoking ban. Similar rules to those for hotels apply, except that designated smoking rooms in prisons do not have to be completely enclosed.

    Smoking is permitted where the artistic integrity of a performance makes it appropriate for a performer to smoke (eg in a theatre). In this case, the part of the premises where he or she is performing is not smoke free in relation to the actor during his or her performance.

    Other areas that are not covered by the smoking ban include:

  • specialist tobacconists;

  • designated rooms in offshore installations;

  • designated rooms in certain research and testing facilities; and

  • designated rooms in mental health units (until 30 June 2008).

    • No-smoking signs in smoke-free premises

    Anyone who 'occupies or is concerned in the management of' premises where smoking is banned has a duty to make sure that no-smoking signs are displayed in specific places. Information on what these signs look like and where they have to be displayed is contained in the Smoke-free (Signs) Regulations 2007.

    The signs must be displayed in a prominent position at each entrance to smoke-free premises. Each sign must:

  • be at least A5 size (148mm x 210mm);

  • display the no-smoking symbol; and

  • contain 'in characters that can be easily read by persons using the entrance' the words: 'No smoking. It is against the law to smoke in these premises' (the words 'these premises' can be replaced with another phrase that identifies the premises, eg 'this hotel').

    • A smaller no-smoking sign that shows only the no-smoking symbol (no less than 70mm in diameter) can be used in certain locations (eg by an entrance to smoke-free premises from other smoke-free premises).

    The signs are available on the Smokefree England website.

    No-smoking signs in vehicles

    Anyone with 'management responsibilities' for a smoke-free vehicle must make sure that at least one of the smaller (70mm) no-smoking signs is displayed in a prominent position in each compartment of the vehicle.

    Offences, defences and penalties

    It is a criminal offence to smoke in a smoke-free place or for a person in control of a smoke-free place not to stop someone from smoking there. The smoke-free legislation will be enforced by local councils. The Government has set up a telephone hotline for members of the public to report suspected breaches of the law. The telephone number is 0800 587 1667.

    Smokers: Individuals who smoke in a smoke-free place face a fine of up to £200 or a fixed penalty of £50. The smoker has a defence if he or she can show that he or she did not know, and could not reasonably have been expected to know, that the premises were a smoke-free place.

    Managers and controllers: A person who 'controls or is concerned in the management of' smoke-free premises who fails to stop someone smoking in those premises can be fined up to £2,500. However, the person in control of the premises has a defence if he or she can show that he or she:

  • took reasonable steps to stop the person smoking;

  • did not know, and could not reasonably have been expected to know, that the person in question was smoking; or

  • believed it was reasonable not to comply with the duty on other grounds.

    Failure to display the correct no-smoking signs in premises or vehicles can result in a fine of up to £1,000 or a fixed penalty of £200, unless the manager or controller can show that he or she:
    •

  • did not know, and could not reasonably have been expected to know, that the premises or vehicle were smoke free;

  • did not know, and could not reasonably have been expected to know, that no-smoking signs were not being displayed; or

  • believed that it was reasonable not to comply with the duty on other grounds.

    • Other possible criminal offences under the legislation include:

  • intentionally obstructing an authorised officer in the exercise of his or her functions;

  • failing to give an authorised officer any facilities, assistance or information that he or she reasonably requires; and

  • making false or misleading statements.

    • These offences can attract a fine of up to £1,000.

    Enforcement

    Enforcement officers, who will be appointed by local councils to police the ban, will be entitled to:

  • enter premises (except private homes) 'at any reasonable hour';

  • carry out 'necessary inspections and examinations';

  • require people to hand over any substance for inspection;

  • keep, or keep samples of, any such substance; and

  • require any person to give them the information or assistance that they consider necessary.

    • General health and safety rules

    Even where smoking is permitted under the legislation, general health and safety considerations will still arise and employers should protect young people and pregnant women in particular from exposure to second-hand tobacco smoke while at work.

    Next week's article will look at the obligations on employers to enforce the smoke-free laws and will give advice on how to implement a no-smoking policy at work.

    David Appleton is a partner in the Employment and Incentives Department at Lewis Silkin (david.appleton@lewissilkin.com).

    Further information on Lewis Silkin can be accessed at www.lewissilkin.com.