This article was written in advance of the introduction of legislation which came into effect on 1st July 2007. You are advised to contact a solicitor to ensure you have the most up to date advice at all times.

Smoking in enclosed or substantially enclosed public places and workplaces in England will be prohibited from 6 a.m. on 1 July 2007 under the Health Act 2006. Landlords and employers that ignore the legislation could face fines and possible criminal charges and should take action now to ensure that they comply. The Regulations providing details on the extent of the provisions have now been fully published.

Scope of smoking ban

The ban applies to all substances which a person can smoke, including manufactured and hand-rolled cigarettes, pipes and cigars. Smoking is banned in:

  • Enclosed places, defined as a space which has a ceiling or roof, and which, except for doors, windows and passageways, is wholly enclosed (either permanently or temporarily).
  • Substantially enclosed spaces, which are premises with a ceiling or roof where there is an opening (or openings) in the walls which is less than half of their perimeter.

Establishments covered by the ban include offices, churches, factories, shops, pubs, bars, restaurants, private members’ clubs, and also public transport and work vehicles used by more than one employee. If more than one person uses any part of a private dwelling as a place of work then it must also be smoke-free. There are limited exceptions including designated smoking bedrooms in hotels and rooms in hospices and some care homes.

Vehicles used primarily for private purposes are excluded from the ban, but if a vehicle is used by any other passenger or driver for work then smoking will be prohibited. The law therefore remains different from Scotland where work vehicles (whether used solely by one person or not) are covered.

Action required

Employers that currently permit employees to smoke at work, whether in designated smoking rooms, or by segregating smokers and non-smokers in different offices, will need to ensure that their working environments are smoke-free from 1 July 2007.

We would recommend to employers that they ensure that their employees have been reminded about the implementation of the new law and in particular the effect it will have upon their workplace and vehicles. Consultation should occur if appropriate.

Employers should remember that homeworkers are also covered by the new law (including the need to display the required signage). If employees work from home, then the employer must take the necessary steps to ensure that their obligations in respect of the employee’s workplace (i.e. their home) under the law have been complied with.

It will be advisable to update disciplinary procedures and codes of conduct to make a breach of the no smoking policy an act of misconduct and ensure employees are aware of the revised provisions.

Training of managers regarding their responsibilities under the new regime is to be recommended. The person, to whom any breach of the law must be reported, should also be clearly identified to the employees.

Employees wishing to smoke during the working day will have to do so outside their office buildings. Employers may wish to designate specific places outwith office premises where smoking will be permitted and/or provide facilities where this can occur, i.e. a smoking shelter (though care must be taken to prevent the shelter coming within the definition of an "enclosed" place itself). An employer may also consider imposing limits on the amount of time or number of breaks employees are allowed to take for the purposes of smoking in order to control productivity, though if such breaks are contractual rights, care must be taken before altering the position.

Enforcement and penalties

Employers must display no smoking signs in a prominent position in the entrance to all smoke-free premises and vehicles. Signs must be of a prescribed size, display the international no smoking symbol and state "No smoking. It is against the law to smoke in these premises."

Smaller signs can be used for premises used by members of staff only, in certain circumstances.

An individual found guilty of smoking in smoke-free premises or a smoke-free vehicle can be liable to a fixed penalty of £50 (discounted to £30 if paid within 15 days) or a fine of up to £200. An employer that fails to display no smoking signs could be liable to a fixed penalty of up to £200, discounted to £150 if paid within 15 days, or a fine not exceeding £1,000. Failing to prevent smoking in smoke-free premises or a smoke-free vehicle carries a fine of up to £2,500. Again this means that there are differences from the Scottish position where early payment of fines does not result in a discount of the sum due.

Local councils will be responsible for enforcing the new law. Guidance from the Department of Health suggests that the approach to enforcement will be "non-confrontational" and that enforcement action will only be considered when efforts to encourage compliance have failed. Enforcement officers will however have the power to enter premises or board vehicles to determine whether businesses are complying with the new law.

Conclusion

There is a significant ongoing advertising campaign by the Government to publicise the new position and they have also set up a helpful website (www.smokefreeengland.co.uk) which provides useful advice.

The law will bring about a radical change in England which will affect many aspects of life. There may be some element of "teething troubles" immediately after implementation but it is notable that the ban has already occurred in Scotland, Northern Ireland and Wales without significant problems.

As always, proper preparation and clear information to employees should minimise potential issues. Given the potential penalties upon an employer for failing to ensure compliance, it is likely that employers will require to take a robust approach to breaches by their employees.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.