Smoking in the workplace: case study
Michael Corcoran of steeles (law) llp continues a series of articles on the legal aspects of smoking in the workplace with a case study.
Scenario
Mario owns and manages a small printing company, MPrint Limited, based in England. He is a heavy smoker.
MPrint has 25 employees, six of whom are members of Mario's family and also smoke.
Mario has told his employees that they should not smoke near the printing presses, but there are very few other restrictions on where or when staff can smoke. Most employees generally smoke in the staff room, where there is a TV and basic kitchen facilities, or in a garage attached to the main office building, where Mario and other senior employees park their cars.
Mario does not currently have a smoking policy and is reluctant to introduce one as he knows that he will be the most affected and that it will lead to complaints from employees, including family members.
Is Mario under a legal obligation to change MPrint's current smoking arrangements?
Although smoking in the workplace in England and Wales will be prohibited from next year under new regulations, there are currently no specific legal requirements for employers in England and Wales to ban or restrict smoking in the workplace.
However, employers have a general duty under the Health and Safety at Work etc Act 1974, section 2(1) to ensure, as far as is reasonably practicable, the health, safety and welfare at work of their employees. In addition, the Health and Safety at Work etc Act 1974, section 2(2)(e) imposes a specific duty on employers to provide and maintain a working environment for their employees that is, as far as is reasonably practicable, safe, without risks to health and adequate as regards facilities and arrangements for their welfare at work.
In a small number of court cases, employees have successfully claimed a breach of these health and safety obligations after developing asthma or other breathing difficulties as a result of being exposed to smoke at work. In addition, there have been numerous and significant out-of-court settlements in respect of other smoking-related complaints.
With Mario's current arrangements, he is at risk of similar claims from those of his employees who do not smoke but who have been exposed to second-hand smoke in the staff room or elsewhere in the building. In the short term (before the smoking ban becomes law next year), Mario should insist that smokers go outside for a cigarette break, leaving the staff room as an area where all staff can take a break in a smoke-free environment. Although this will not remove the risk of a claim by an employee (as his or her illness or breathing difficulties may not emerge until later in life), it is a necessary step and demonstrates that Mario is taking the problem seriously.
What impact will the new regulations have on MPrint?
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. Under the regulations, smoking rooms will no longer be permitted, 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). 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 regulations will require employers to:
clearly display 'no smoking' signs in both the workplace and smoke-free vehicles.
The restriction on smoking will apply not only to MPrint employees but also to its 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.
When the ban on smoking in the workplace takes effect, Mario should make it clear to his employees (including his family members) that any breach of the new rules will result in disciplinary action. He should follow through with this threat if the changes are not taken seriously; failure to do so could result in MPrint being prosecuted and fined.
Can Mario change the garage into a smoking room?
There is no requirement for Mario to provide alternative smoking facilities for those of his employees who wish to smoke, but he may wish to consider providing a shelter to prevent employees smoking directly outside the premises and to protect them from bad weather. However, under the regulations, shelters should not be wholly or substantially enclosed. Premises will be considered to be enclosed or substantially enclosed if they have a ceiling or roof and, except for doors, windows or passageways, are wholly enclosed (whether on a permanent or temporary basis) or are enclosed but for an opening that is less than half of the total workplace perimeter.
This means that Mario's garage is likely to be considered as substantially enclosed, even though it is separate from the main building and is not used for printing purposes. He cannot therefore change the garage into a smoking room.
How should Mario implement the changes without causing employee unrest?
As awareness of the health risks of passive smoking has grown, demand from non-smokers for smoke-free public places has dramatically increased, as has smokers' acceptance that non-smokers should not be unfairly exposed to their smoke. Many of MPrint's employees who will be affected by the changes will fully understand Mario's motives. Equally, many of MPrint's employees will already be aware of the new regulations, since they have received a very high profile following the introduction of a smoking ban in Ireland (in March 2004) and in Scotland (in March 2006), and of the passage of the Health Act 2006 through Parliament in July 2006.
With this in mind, Mario should not be afraid to implement the changes and should aim to make them as soon as practically possible after a period of consultation.
It is important that Mario communicates the changes in policy to all of his employees and invites employee feedback as part of a consultation process. While he must take any objections and comments seriously, he will need to go ahead with the proposed changes and explain his reasons.
If an employee refuses to accept the new changes, Mario should explain that the policy must be introduced to comply with the regulations. The employee will have the option of either resigning or continuing to work (in which case he or she must observe the policy or risk disciplinary action).
Mario might want to consider what support he can provide to employees who want to give up smoking (for example, by putting them in touch with local NHS smoking-cessation services or allowing them time off to attend counselling appointments). Employers are not, however, under any obligation to provide such support.
Next week's article will feature some frequently asked questions on smoking in the workplace.
Michael Corcoran is a solicitor in the employment team at steeles (law) llp (lonemp@steeleslaw.co.uk).
Further information on steeles can be accessed at www.steeleslaw.co.uk.
