The Health Act 2006 has provided for the prohibition of smoking in certain premises, places and vehicles in England since 1 July 2007. Wales implemented the smoking ban on broadly the same terms from 2 April 2007 and Northern Ireland from 30 April 2007. This Guide refers to the English legislation only but the principles will be relevant to Wales and Northern Ireland . Scotland has already introduced its smoke-free legislation.
The Guide is broken down into five main sections:
1. Summary of the main legal issues
Smoke-free workplaces
The smoking ban applies to premises which are ‘enclosed or substantially enclosed’ and the Smoke-free (Premises and Enforcement) Regulations 2006 (the Regulations) specify what this means.
Premises are enclosed if they have a ceiling or roof and, except for doors, windows and passageways, they are wholly enclosed, either permanently or temporarily.
Premises are substantially enclosed if they have a ceiling or roof and less than half of their perimeter consists of openings in the walls (other than windows, doors or openings which can be shut).
A ‘roof’ for the purposes of the Regulations includes any fixed or moveable structure or device which is capable of covering all or part of the premises as a roof, including, for example, a canvas awning.
‘No smoking’ notices must also be displayed at all entrances to smoke-free workplaces- see the section on ‘no smoking’ signs.
Company vehicles
The smoking ban also applies to company vehicles if they are used by more than one person for carrying out work duties (even if they do so at different times or only intermittently). This means that if an employee uses a car (his own or a company car) for work but nobody else ever uses it for business purposes, it does not need to be smoke-free.
Private vehicles (i.e. vehicles which are used primarily for private purposes by employees who own them or have a right to use them in an unrestricted way) are not required to be smoke-free.
‘No smoking’ notices must be displayed in all work vehicles affected by the ban - see the section on ‘no smoking’ signs.
Enforcement of the new law
Local authorities are designated enforcement authorities responsible for enforcing the smoke-free legislation. They will therefore have rights of entry into most workplaces regardless of who is the enforcing authority for health and safety.
Employers’ enforcement role
You are required to take reasonable steps to ensure that staff, customers and visitors are aware that your premises and vehicles are smoke-free. Additionally, you must ensure that no-one smokes in a smoke-free area. Employers that fail in their responsibilities or ‘turn a blind eye’ will be liable to a fine of up £2500.
You should also review your disciplinary rules to ensure that they are amended to refer to the ‘no smoking’ rule, breach of which could give rise to disciplinary action including dismissal. Whether or not dismissal is the appropriate sanction for breach of the ‘no smoking’ rules is likely to turn on a number of factors, such as the nature of your business and the location of the breach.
For example, if the employee was smoking near flammable materials, dismissal may well be warranted. We suggest in the example smoking policy provided that you highlight how seriously you will take an episode of unauthorised smoking and ensure that the position is reflected in the disciplinary rules. Any circumstances where breach of the smoking rules will result in dismissal should be set out very clearly.
Now the law is in force, normal disciplinary procedures should be followed.
Individual penalty
Individuals smoking in smoke-free premises or vehicles are also liable to a fixed penalty notice of £50 or a fine of up to £200.
> What do you need to do?