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If you are amongst the seven out of ten people in this country who do not smoke, you may have paid scant regard to the Government's recent publication, "Smoking Kills", effectively a statement of intent as to how the Government proposes to weed out the weed. But whilst the majority of the White Paper addresses active smoking, it also seeks to remind employers that they have duties to protect their employees from the risks of passive smoking.
The most specific and well recognised of these requirements is Regulation 25 of the Workplace (Health, Safety & Welfare) Regulations 1992. This imposes an obligation on employers to provide rest facilities. In so doing, suitable arrangements must be made to protect non-smokers from tobacco smoke.
What may surprise you is that your duties in terms of passive smoking go much further than this.
Under Section 2 of the Health & Safety at Work etc Act 1974 you are required to ensure the health, safety and welfare at work of all your employees, so far as is reasonably practicable. More particularly, you must provide and maintain a working environment that is safe without risk to health and which has adequate facilities and arrangements for your employees' welfare. Similar duties exist under Section 3 in relation to non-employees on premises which are subject to your control.
Failure to comply with any of the above provisions will render you liable to prosecution. If convicted, before a Magistrates Court, a fine not exceeding Ł20,000 may be imposed. Where the circumstances are so serious that the case is transferred to the Crown Court, there is no limit on the fine and the court may also imprison a Defendant for up to two years.
To date, guidance from the HSE as to what sections 2 and 3 require of you have been worryingly inadequate, given the consequences of non-compliance. Produced in 1992, the advisory leaflet, "Passive Smoking at Work", recommends:
A complete ban where there is a risk of fire or explosion
A specific written policy available to all employees
Priority to be given to the needs of non-smokers
Special care to be provided to those with a medical condition that may be exacerbated by tobacco smoke
Traditionally, the HSE have tended to adopt a conciliatory stance to passive smoking problems. That is now to change.
As part of the Government's efforts to reduce the number of deaths caused by smoking, the Health & Safety Commission is producing, for consulatation, a draft Code of Practice on passive smoking. Once approved, it will effectively set the standard for compliance, providing practical advice on how to comply with the law.
Whilst it is not an offence to fail to comply with an approved Code of Practice, the HSE may rely upon non-compliance as evidence that an employer is breaching health and safety provisions.
If an employer is unable to demonstrate compliance with the Code, they will be found to be at fault unless they show that they complied with the law in another way.
A code benefits you in pinpointing exactly what is required. The advantage to the HSE is that it shifts the burden of establishing compliance from them to you.
Criminal liability is only one half of the picture.
In 1997, the Employment Appeal Tribunal, adopting Section 2 of the Health & Safety at Work etc Act 1974, ruled that there is an implied term in every contract of employment that an employee will provide and maintain a working environment which is reasonably tolerable to all employees. In circumstances where the rights of an employee to work in a non-smoke filled atmosphere cannot be protected, only a total ban will suffice.
An employee whose health suffers as a direct result of passive smoking may issue civil proceedings which you will need to refer to your insurers. To ensure that your claim is covered, your insurers will normally require you to demonstrate that you took steps to avoid a claim. Compliance with the Code of Practice will become the standard but as it is likely to be some time before it is in force what basic measures should you be taking now?
Ascertain whether smoking takes place in any building on your premises
If it does, then determine whether anyone in those areas has a medical condition which could be aggravated by passive smoking
If they do, you need to take immediate steps to protect them by, for instance, a smoking ban or segregation, providing better ventilation or an air purification scheme
Draft a policy in consultation with staff and management
Record your deliberations, findings, recommendations and actions at each stage of this exercise
Whilst the contents of the proposed Code of Practice is presently unknown, one thing is certain - passive smoking is set to become a burning issue.
For further information please contact Mike Shepherd, e-mail: Click Contact Link , Trinity Court, 16 John Dalton Street, Manchester, M60 8HS, UK, Tel: + 44 161 830 5000
This article was first published in the March 1999 Hammond Suddards Safety, Health and Environment Newsletter Update
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
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