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Getting ready for the Smoking ban

All enclosed public places and workplaces will become smokefree from 1st July 2007. 

Is your business ready?

Who is Affected?

The implementation of the smoke-free elements of the Health Act 2006 will mean that virtually all enclosed public places and workplaces will become smoke-free environments. This will include hotels, pubs, bars, restaurants, membership clubs, offices, factories, shops, public transport and work vehicles that are used by more than one person.

The ban is to apply to partially covered venues - the open areas of which make up less than half their total area.  For example, if 40% of a pub's garden area was covered the ban would not apply. But if 60% of it was covered, then the ban would apply.  An enclosed area can be so even if this is temporary and “roof ” includes, for example a canvas awning.

Exemptions

The main exemptions to the smoke-free requirement concentrate on whether an area can be designated as an individual’s private space and this is expressed as a “private residential dwelling”.  Such a dwelling can include a designated bedroom in a hotel, guest house or member’s club.  Other residential exceptions include designated rooms in prisons, care homes, hospices, mental health units etc.

However, this exemption will not apply in the following two circumstances:

1. Any part of a private dwelling that is shared by other premises (including other private dwellings) if open to the public or used as a place of work. (This therefore to include, for example, any corridor etc outside the designated bedroom in a hotel.)
2. Any part of a private dwelling that is used solely for work and attended by one or more persons who do not live in the dwelling. (General domestic, caring and caretaker chores excluded.) 

Particular provisions apply for such “designated” areas, these are that it: 

(a) is set apart exclusively for sleeping accommodation - (a requirement solely for “designated bedrooms” in accommodation for guests and club members);

(b) has been designated by the person having the charge of the premises in which the room is situated as being a room in which smoking is permitted;

(c) has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid, floor-to-ceiling walls;

(d) does not have a ventilation system that ventilates into any other part of the premises (except any other designated bedrooms or smoking rooms);

(e) does not have any door that opens onto smoke-free premises which is not mechanically closed immediately after use; and

(f) is clearly marked as a bedroom or room in which smoking is permitted.

There is also the additional proposed exemption currently proposed for England (not provided for in Scotland) that: “Where the artistic integrity of a performance makes it appropriate for a person who is taking part in that performance to smoke, the part of the premises in which that person performs is not smoke-free in relation to that performer during his performance.”  (Regulation 5 proposed Smoke-Free Exemptions & Vehicles Regulations)

Offences

There are three possible offences under the draft regulations:

1. The legislation will make it an offence for those who control or manage smoke-free premises to fail to stop people smoking on them. An employer will have a valid defence if it takes reasonable steps to prevent people smoking; does not know or cannot reasonably be expected to know that they are smoking; or can show other grounds why it is reasonable not to fulfil its duty. (Proposed fine of £2,500.)
   
   
2. It will also be an offence for those who control or manage smoke-free premises to fail to ensure that compliant no-smoking signs are displayed. Again, a defence will be available for those who, for example, could not have been expected to know that signs previously in place had been removed by vandals. (Proposed fine of £200.)
   
   
3. Finally, a person who smokes in a smoke-free place commits an offence.  (But a person who smokes in premises which are not smoke-free in relation to performers does not commit an offence if he is such a performer.)  A defence will be available for those who can show that he did not know, and could not reasonably have been expected to know, that it was a smoke-free place. (Proposed fine of £50.)

Action to be taken

Employers will need to implement appropriate procedures to ensure their employees and others who access their premises refrain from smoking. These procedures will need to be in place and communicated to the workforce and visitors alike in time for the ban taking effect.

The law will mean that indoor smoking rooms, still common in some workplaces, will no longer be allowed.  Employees and others wishing to smoke will have to go outside instead. Companies may also therefore need to consider the effect of this on productivity and any procedures that should be put in place governing the number of breaks and the areas that smokers may congregate in as well as any associated new risks that may arise.  West Lancashire District Council is reported to be the first local authority in England to ban its staff from taking smoking breaks when it bans smoking in and around all council buildings from March 2007.

There is no requirement to provide smoking shelters for employees and others.  However, if you do have an outsider smoking shelter or area, you will need to be sure that it is not "enclosed" or "substantially enclosed" as referenced above. 

Information and resources to support the introduction of smokefree legislation is available on the Smokefree England website at: http://www.smokefreeengland.co.uk.  

Employers, managers and those in charge of smokefree premises and vehicles will need to:

• Identify all areas where smoking will constitute an offence and display 'no smoking' signs (to comply with regulatory minimum requirements as stated in the draft regulations),
• take reasonable steps to ensure that staff, customers/members and visitors are aware that premises and vehicles are legally required to be smokefree
• ensure that no one smokes in smokefree premises or vehicles - this may involve altering the staff handbook, invoking disciplinary procedures and ejecting visitors from the premises if the policy is breached

Best Practice suggestions:

• remove ashtrays from smokefree areas.
• develop a smokefree policy in consultation with staff, including how to deal with non-compliance.
• provide your staff and customers with support to quit smoking.
• ensure that your staff and customers know where they can smoke if they choose to.

The Health Act 2006 is accessible at: http://www.opsi.gov.uk/acts/acts2006/ukpga_20060028_en.pdf