Q&A
The Health Act 2006 means that smoking in all enclosed public spaces and workplaces was outlawed from 2 April in Wales, from 30 April in Northern Ireland and will be outlawed, from 1 July, in England.
While many employers have already made changes towards smoke-free workplaces, the out-right ban will raise many issues. For further advice, call the Wilsons employment team.
1. Employees have been saying that the fact they have been smoking at work for years means they have a right to continue. Is this the case?
There is no right to smoke at work. The law clarified this back in the 1980s, and in the last decade or so, the focus has shifted to the rights of the non-smoker.
2. Do I have to provide smoking facilities outside the building?
There is no legal obligation on employers to provide facilities for smokers. This will be left to the discretion of businesses. In many cases it will be at the discretion of the landlords of business premises whether to give permission for the erection of shelters.
3. Can employees claim they suffer from an addiction under the Disability Discrimination Act?
No. Addiction to nicotine is not covered under the Act.
4. What about the Human Rights Act - can smokers claim under that?
Legal opinion suggests they would have no right of redress here. Rights under the Act are not 'stand alone' rights and should be viewed in the context of the affect on others - so their right to smoke at work is likely to detract from the right of their colleagues to breathe clean air.
5. I am an employer who smokes. How can I get my reluctant workforce to take the new ban seriously?
It is a good idea to put employees on notice prior of the ban taking place. If you allow smoking at work, in smoking rooms, for example, let your staff know that the rooms will be decommissioned by 1st July. This gives employees time to adjust routines.
As a next step you could allow your staff designated smoking breaks to smoke outside the premises.
Your final step could be to review your existing workplace policy regarding smoking breaks. The publicity surrounding the smoking ban may result in an increase in complaints from non-smokers that smokers receive extra breaks. It is a good idea to have in place a policy that makes clear that if it is breached, disciplinary action may result.
6. I think one or two staff, who see smoking as their last remaining pleasure, will cause real problems. What can I do?
As an employer you cannot ignore the ban. You must display 'no-smoking' signs in the workplace, or you could face a fine of £1,000 for non-compliance. Moreover, if you do not actively enforce the ban, you could face fines of up to £2,500. You would be wise to make sure that staff know that you intend to make smoking at work a disciplinary offence.
7. What if customers insist on smoking on my premises?
You should draw their attention to the 'no smoking' signs and ask them to stop. Tell customers it is an offence for you to allow them to smoke and that they are committing an offence by smoking on the premises. If your customer continues to smoke, explain that staff will refuse to serve them if they continue to do so. If they still refuse to stop smoking, then ask them to leave the premises and where relevant, inform them about where they can smoke. If they refuse to leave, use your usual procedures for dealing with anti-social/illegal behaviour on the premises.