Smoking in the workplace: the new regulations and creating a smoke-free workplace
Lorna Townsend and Sanjeev Uppal of steeles (law) llp continue a series of articles on the legal aspects of smoking in the workplace with a look at the new smoke-free regulations and how to create a smoke-free workplace.
In summer 2007 England will follow in Scotland's footsteps with the introduction of regulations to create smoke-free workplaces. The regulations are designed to protect the health of employees and will introduce a range of smoking offences, including making it an offence for employers to permit their employees to smoke in the workplace.
The TUC and the Health and Safety Executive have urged employers not to wait until next summer but to create smoking policies now to protect their employees from the health risks of second-hand smoke and to ease the transition when the new regulations come into force.
What will the new regulations require employers to do?
The new law will require employers to:
clearly display 'no smoking' signs in both the workplace and smoke-free vehicles.
What is the scope of the regulations?
The regulations apply to all workplaces that are enclosed or substantially enclosed, that is workplace areas with a ceiling or roof that (except for doors, windows and passageways) are wholly enclosed or are enclosed but for an opening that is less than half of the workplace perimeter.
The restrictions on smoking will apply not only to employees but also to visitors and customers while they are in the workplace. Similarly, the provisions of the regulations relating to smoking in vehicles will apply not only to the employees driving the vehicles, but also to their passengers.
Furthermore, methods that many employers currently use to address the health risks attached to smoking, such as creating a separate, designated and enclosed smoking room, will not be permitted under the regulations, subject to the exemptions outlined below.
Certain places of work will be exempt from the regulations, including residential homes, mental health units, prisons, offshore platforms and hospices. In such workplaces, smoking rooms will be permitted for use by residents and guests but not for use by employees (with the exception of offshore platforms). In addition, there are exemptions for some designated hotel rooms and for performances (such as theatre and film) where smoking is necessary for 'artistic' reasons.
The provisions relating to work vehicles do not apply to an employee's own vehicle unless it is being used for hire or as a work vehicle by more than one person.
Why have a smoking policy?
Smoking policies enable employers to ensure that they comply with the new regulations in a practical and sensitive way. The TUC has produced guidance on how smoking policies should be implemented (Negotiating smoke-free workplaces, PDF format, 186K). While the guidance is primarily aimed at union representatives, it is also useful for employers. The guidance suggests that smoking policies should be implemented in the workplace to help protect employees from the effects of smoke, ensure that all employees have a clear understanding of their rights and responsibilities to prevent problems arising and, above all, ensure compliance with the new regulations.
How should employers create a smoking policy?
The TUC guidance recommends that policies be negotiated between employers and their employees as part of a programme of commitment to promoting health and preventing risks at work.
It also recommends that a working group should be set up, with both smoking and non-smoking employee representatives involved, and that the workforce should be kept informed and consulted to ease any conflict that may occur regarding the implementation of the policy.
What should be included in a smoke-free policy?
Smoking policies should aim to protect non-smokers in the workplace and comply with the law. They should:
specify what breaks are allowed for those who wish to smoke outside and clearly state where smoking will be allowed;
explain the consequences of non-compliance with the policy;
describe what support will be available for employees who wish to give up smoking;
specify who is responsible for implementing and maintaining the policy;
outline procedures for resolving any complaints or disputes that may arise;
clearly state that the policy applies to visitors and customers, as well as to employees; and
detail the procedures for monitoring and reviewing the policy.
Although there is no requirement for employers to provide alternative smoking facilities for those who wish to smoke, they may wish to consider providing shelters to prevent employees from smoking directly outside the premises. However, shelters should not be wholly or substantially enclosed.
How should the policy be implemented?
In order to cause the minimum unrest, employers should consult with employees about the new policy. This could be done by issuing a questionnaire or holding meetings or discussion groups with the employees to find out their views on smoking; these views should then be taken into consideration when the policy is drafted.
The policy should be clearly publicised before it is implemented and employers may wish to provide support for employees who wish to give up smoking before the policy comes into effect. The TUC guidance states that, having finalised the policy, employers should inform their employees and give them at least 12 weeks' notice of the implementation date.
Once the policy is in place, it is recommended that it is evaluated and monitored to ensure that it is effective and that it complies with the new regulations.
Conclusion
While the new regulations have been the subject of some controversy and debate, their introduction should be seen by employers as an ideal opportunity to address a wider range of issues within the workplace. For example, it provides an opportunity to improve the working environment and the health of employees and to address issues such as the length of breaks that employees are permitted to take for smoking (either outside the building or in smoking shelters).
Next week's article will feature some frequently asked questions on smoking in the workplace.
Lorna Townsend is a solicitor and Sanjeev Uppal a trainee in the employment team at steeles (law) llp (lonemp@steeleslaw.co.uk).
Further information on steeles can be accessed at www.steeleslaw.co.uk
