News
10 May 2007
No butts - Employers guide to the smoking ban
From 1 July smoking will be banned in England in almost all workplaces and enclosed areas to which the public have access, including public transport, taxis, and company vehicles; bringing the law into line with Scotland, Wales and Northern Ireland where similar bans already apply.
The National Institute for Health and Clinical Excellence (NICE) has suggested that employees who smoke should be given time off work without loss of pay to attend clinics during working hours to help them to quit. Many employers regard this proposal as unbelievable, particularly small businesses.
What duties do employers have towards their staff?
Employers will commit criminal offences from July if they do not prevent smoking in their enclosed premises and company vehicles. Limited exceptions apply: in your own home as long as it is not used as a place of work and designated smoking rooms in care homes, hospices, long stay health units, hotel bedrooms, private vehicles and adult prisons.
Any term in a workers contract that they are allowed to smoke at work, will be null and void if allowing it causes the employer to commit an offence. In addition, unless the workers can show that they have always been allowed to take breaks to smoke (so that the custom and practice has become an implied contractual term) they won’t be able to take breaks to stand outside to smoke either, unless the employer allows them to. It goes without saying therefore that employers are not obliged to provide a cigarette bin or a shelter for employees who smoke.
Employers must display ‘no smoking’ signs in company premises and vehicles.
The signs must be:
• A minimum size of 148mm x 210mm (A5)
• Include the international red “no smoking symbol” 75mm in diameter
• Include the wording “No smoking. It is against the law to smoke in these premises”
In company vehicles the no smoking sign must be:
• 75 mm in diameter
• Display the international no smoking symbol
Many staff are allowed to take a 20-minute rest break away from their work stations if they work for six or more hours by virtue of the Working Time Regulations, so smokers could take advantage of that if they wished.
Smokers also have no right to the paid time off that NICE suggests be given, unless the employer has already agreed contractually to such support. Nor can they argue that their addiction is a disability that requires a “reasonable adjustment” as addiction to tobacco is expressly excluded from the Disability Discrimination Act.
But if an employer does decide to be generous to the smokers, and gives them the time off, could the non-smokers kick up a fuss that they are being discriminated against? Just for once, the smokers win – being a smoker or a non-smoker is not a protected category in any discrimination laws, so the non-smokers will just have to feel smug that they have more willpower than their puffing colleagues.
Fines
Workers smoking in a no smoking place or vehicle £200
Failure to display a no smoking sign £200 (up to £1000 if the case goes to court)
Failure to prevent smoking in a smoke free place £2500
So yes again it is the employer not the workers who have the greatest liability and yes you are being asked to be big brother.
Please contact nicola.quinlan@beswicks.com for further information.
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