Smoking in the workplace: frequently asked questions

Elizabeth Stevens of steeles (law) llp concludes the current series of articles on the legal aspects of smoking in the workplace by answering some frequently asked questions.

Our office has a smoking policy in place and smoking is permitted only in a designated smoking room. Do we need to take any further action to prepare for the smoking ban in England?

Yes. The new regulations will prohibit smoking in 'enclosed' or 'substantially enclosed' workplaces. This includes smoking rooms, subject to limited exceptions. If the workplace is a residential home, mental health unit, prison, offshore platform or hospice, smoking rooms will be permitted for use by residents and guests but not for use by employees, with the exception of offshore platforms.

You should therefore review your existing smoking policy before the legislation comes into force (summer 2007) to ensure that it complies with the new rules. The policy should clearly state that smoking is not permitted anywhere in the workplace and that any employee who breaches the policy will be subject to disciplinary action. In addition, the policy could specify where smoking is permitted outside (perhaps avoiding any area near the entrance, where clients or customers access the building).

It would be advisable to consult with your employees on any changes to be introduced under the smoking policy to help ensure that it is adhered to in the future. Once it is finalised, the policy should be clearly communicated to all employees, and they should be informed of the consequences of failing to comply. Best practice would be to give employees advance notification of the policy's implementation date. The TUC guidance on how smoking policies should be implemented (Negotiating smoke-free workplaces, PDF format, 186K) suggests a period of 12 weeks. However, a minimum of four weeks should be sufficient in most cases, provided that the changes are not significant.

In addition, under the regulations, employers must clearly display 'no smoking' signs at the entrances to the workplace and in smoke-free vehicles. The exact requirements for such signs (eg size) are yet to be finalised.

A number of our employees take frequent smoking breaks and this has caused resentment among non-smoking employees in the past. How can we deal with this situation in the light of the new legislation?

The legislation does not contain any provisions relating to smoking breaks and employers are under no obligation to provide such breaks (it is theoretically possible that an employee could establish a right to take smoking breaks through 'custom and practice', but this is unlikely).

If smokers previously had access to a smoking room, it is likely that they will have to go further in order to smoke outside, meaning that they will be away from their workstations longer. Employers should consider restricting the number and/or duration of smoking breaks, if possible in consultation with the employees and any union representatives. Employees could be required to take smoking breaks during their usual rest breaks (eg during lunch) or the time taken for smoking could be deducted from their entitlement to other breaks, subject to the requirements for minimum rest breaks under the working time legislation. In practice, this may prove difficult to monitor and to enforce but could at least deter employees from taking too many breaks.

It is important for employers to introduce any changes gradually and to give employees time to adjust their smoking habits (or even to give up smoking) in advance of the legislation taking effect.

One of our employees is a heavy smoker and has had a number of absences due to a smoking-related illness. How should we deal with these absences?

These absences should be dealt with in the same way as you would deal with any other long-term or frequent but intermittent absences, remembering your obligations under the Disability Discrimination Act 1995.

While any addiction (eg to nicotine or alcohol) is expressly excluded from being a 'disability' and is therefore not covered by the Act, any medical conditions that result from an addiction are likely to be covered. In addition, any form of cancer (whether linked to smoking or not) is now deemed to be a disability under the provisions of the Act. Employers are under a duty not to discriminate against employees with a disability and to make reasonable adjustments for them.

A trade union representative has claimed that employers will be obliged to offer employees support and assistance in giving up smoking. Is this the case?

No. Employers are under no obligation to offer assistance to employees who want to give up smoking. However, it would be good practice to do so and it need not be costly to the employer.

Larger employers could consider offering employees free or subsidised counselling or nicotine replacement therapy (ie patches or gum). Smaller employers could provide useful contacts, distribute self-help guides or perhaps allow employees time off work to attend smoking-cessation classes or counselling appointments.

Further information is available from the NHS Stop Smoking Service on: 0800 169 0169. Useful websites include Action on smoking and heath (www.ash.org.uk), Giving up smoking (www.givingupsmoking.co.uk ) and Quit (www.quit.org.uk).

I manage a care home where a number of employees and residents smoke. How will the new rules apply to my care home?

The regulations will not apply to areas of premises that are considered to be private residential spaces. Exemptions will apply to certain types of residential accommodation, including care homes, subject to specified conditions. Smoking will be permitted in 'designated rooms'. These could be either an individual's bedroom or another room that had been designated as being only for smoking.

These exemptions will apply only to residents and their guests; employees will not be able to smoke on the premises (offshore platforms are the only exception to this). The new smoking rules will therefore apply to staff at the care home, just as they would at any other place of work.

We employ a number of homeworkers. Should we ban them from smoking at home?

No. The rules do not apply to anyone who works from home. Similarly, they will not apply to work undertaken in a private dwelling to provide personal care to a person living there or to assist in the domestic work of that household. There will therefore be no requirement for an individual not to smoke in his or her own home, even if, for example, a cleaner, nanny or carer is present.

What are the consequences for employers of failing to comply with the legislation?

The legislation will create three offences: smoking in a smoke-free place, failing to prevent smoking in a smoke-free place and failing to display no-smoking signs in the prescribed manner.

While employees could be liable for the first offence, it is the other two offences that will be of most concern to employers. They will have a defence to the offence of failing to prevent smoking in a smoke-free place provided that they can show they took reasonable steps to prevent the individual from smoking. It will not be sufficient for an employer to have a smoking policy in place; the policy must be properly monitored and enforced.

Local authorities (in practice likely to be environmental health officers) will have the power to enforce the provisions and will be able to issue fixed penalty notices of £200 for failing to display correct no-smoking signs. Employers that are prosecuted and found guilty of failing to prevent smoking in a smoke-free place may be fined up to £2,500.

Clients regularly visit our organisation. Should we ban them from smoking on our premises?

Yes. The requirements of the legislation will apply to visitors and clients, as well as to employees. If a client smokes on the premises, both the client and the person who manages or controls the premises will be potentially liable. It should be made clear to all visitors that the smoking policy applies to them; if they refuse to stop smoking, they should be asked to leave the premises.

Next week's article will be the first in a series on the festive season and will look at employers' responsibilities relating to parties.

Elizabeth Stevens is a professional support lawyer in the employment team at steeles (law) llp (lonemp@steeleslaw.co.uk).

Further information on steeles can be accessed at www.steeleslaw.co.uk