UK: You May Huff, But You Can’t Puff…..

Last Updated: 14 November 2005

By Mr Alan Masson and Ms Karen McGill

After much high-profile debate, and although not yet approved by the Scottish Parliament, The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 are scheduled to come into force at 0600 hours on 26th March 2006. They will prohibit smoking in "offices, factories and other premises that are non-domestic premises in which one or more persons work" as well as in pubs and hotels. This means that all enclosed public places, including workplaces (however small), must be smoke-free. "No-smoking premises" are defined as those places which have a ceiling or roof and, except for doors, windows or passageways, are wholly enclosed, whether permanently or temporarily, and:

  • to which the public or a section of the public has access;
  • which are being used wholly or mainly as a place of work by persons who are employees;
  • which are being used by and for the purposes of a club or other unincorporated association; or
  • which are being used wholly or mainly for the provision of education, health or care services.

In the workplace, this applies to employers, employees, customers and visitors to the premises. It also applies to individuals who work alone in their own business premises and who have no employees.

The Scottish Executive are due to publish guidance in October of this year which will set out the steps that employers, managers or those in control of premises should take to comply with the law. This will include the display of no-smoking notices so that they are clearly visible to all employees, customers and visitors while in the premises, including at each entrance, in toilets and staff rooms. Smoke-free policies will require to be developed and implemented. All ashtrays will require to be removed from premises and, where appropriate, external stubbing out bins will require to be provided at entrances to premises.

Employers are not obliged to provide external smoking shelters for their staff, but they may want to at least consider it if a large number of staff are affected. Any external shelter must have an opening which is greater than half of the area of its walls in order to avoid the shelter from becoming "substantially enclosed" and thereby resulting in a breach of the Regulations. Employers may also wish to consider providing support to any of its staff who wish to give up smoking, but again this is not set to be a requirement. Those employers whose premises are already smoke-free should consider putting in place a written no-smoking policy, if they haven’t already done so. Employers will be expected to take all reasonable measures to ensure that its staff, customers or visitors to its premises do not smoke.

What does this mean in practical terms?

It bans smoking from all public places by:

  • making it an offence to smoke in no smoking premises;
  • making it an offence to permit others to smoke in no smoking premises;
  • making it an offence to fail to display warning notices in no smoking premises;
  • giving enforcement officers the power to enter no-smoking premises;
  • making it an offence to fail, without reasonable cause, to give one’s name and address to enforcement officers on request.

Is it enough if you already have a designated or segregated area for smoking?

No – the Regulations require a total ban on smoking in enclosed places. It will no longer be enough to set aside a designated or segregated area for smokers, nor will it be enough to say that your workplace is well ventilated and therefore it provides a safe level of exposure to passive smoking.

Will the new law extend to company vehicles?

Yes, all vehicles used for business purposes, including light goods and heavy goods vehicles, taxis, buses, trains and ferries will be covered by the new law. The only exception will be for those who use their own private car for business purposes.

Who has been tasked with enforcing and "policing" the new law?

Environmental Health Officers have the power to enter all no-smoking premises to establish that the smoke free legislation is being enforced. They can also give out fixed penalty notices to people whom they believe are committing, or have committed, an offence under the new legislation. Those in control of no-smoking premises could be liable to a fixed penalty fine of £200 if they have not taken reasonable action to prevent someone from smoking on the premises, or if they have not provided adequate no-smoking signs. Individuals who smoke in no smoking premises will be liable to a fixed penalty fine of £50. Changes in the licensing laws are also being brought in which will take account of a publican’s failure to comply with the law, when deciding on future licensing applications.

Are there any exemptions to the new law?

Yes, mainly on humanitarian grounds. Residential accommodation, designated rooms in adult care homes, adult hospices, designated rooms in psychiatric hospitals and units, designated hotel bedrooms, designated detention or interview rooms, designated rooms in offender accommodation premises, offshore installations and private vehicles are exempt. Nothing in the new law, however, obliges an employer or manager of exempted premises to permit smoking or to provide a smoking area.

While Liverpool has already implemented its own smoking ban in public places, the rest of England is not expected to follow their lead until 2008. At the moment, however, it is not anticipated that the restrictions south of the border will be as prohibitive as they are to be in Scotland.

This article featured in the September 2005 issue of MacRoberts Employment Law e-update.

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© MacRoberts 2005

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