01 February 2007
Jocelyn Dorrell

Giving up smoking might top the list of most popular New Year resolutions, but more than half of us will have broken whatever promises we made ourselves before January is out. Landmark public-health legislation due later this year means employers will not have the same luxury. Any failure to follow through on their intention to keep workplaces smoke-free will attract penalties.

On 1 July, England will follow the examples of Scotland and the Republic of Ireland and bring in legislation on smoking in enclosed public places. The Welsh Assembly plans to introduce similar legislation on 2 April, and Northern Ireland is expected to follow suit on 30 April. With very few exceptions, all workplaces must be smoke-free or employers face prosecution.

Although many organisations exiled smokers to car parks and doorways long ago, recent statistics indicate that a significant number of employers have work to do if they are to be compliant in time for the regulations. The TUC estimated in October that around two million employees work in premises where smoking is permitted everywhere, and a further 10 million in places where smoking is allowed somewhere on the premises.

Smoking is recognised as the greatest single cause of preventable illness and premature death in the UK, accounting for 106 000 deaths each year. But the regulations due later this year are not primarily about stopping people smoking; rather they are about making shared space smoke-free - a distinction that was important in getting the Bill through Parliament.

Ian Gray, policy officer at the Chartered Institute of Environmental Health (CIEH), prefers not to use the word "ban" at all; "it makes people think of fox hunting," he says. As the Department of Health's consultation paper on the Regulations explains, the purpose of the legislation is "to shift the balance significantly in favour of smoke-free public places and workplaces ... to reduce levels of exposure to second-hand smoke".

In recognising people's rights "to be protected from harm and enjoy smoke-free air", the government hopes also to ease the way for would-be quitters and cut overall smoking rates.

Five sets of regulations will bring into force the smoking restrictions in England. The Smoke-free (Premises and Enforcement) Regulations were laid before Parliament on 18 December, and the Smoke-free (Signs) Regulations are currently being considered by the European Commission and are not expected to change. Three further sets of regulations are due to be published soon, covering exemptions and vehicles; penalties; and offences in vehicles and fixed-penalty notices. The legislation will cover smoking tobacco and anything that contains tobacco, including manufactured cigarettes, hand-rolled cigarettes, pipes, cigars and water pipes.

Last refuge

The regulations will outlaw smoking in "enclosed" and "substantially enclosed" premises. In defining these terms, the government is following the Scottish model (see "Enclosures" box on page 22). Private dwellings are excluded from the Regulations and there are also exemptions for residents in hotels and care homes (see box on page 24). But the draft regulations make it clear that anyone in control of such premises is not obliged to allow smoking.

All public transport (including mini-cabs) and any vehicle used by more than one person for work - regardless of whether they are in the vehicle at the same time or whether they are both smokers - must be smoke-free. Smoking will be allowed in vehicles used solely by the driver, provided that they are not used for work by anyone else. Smoking will also be permitted in convertible cars when the top is down, but not when the roof is even half up.

"In terms of ensuring the protection of workers from second-smoke, in my view it's the most comprehensive legislation passed anywhere in the world," says Gray. "People talk about exemptions, but there are no exemptions for employed persons. If you're employed to work, there are no circumstances in which you can smoke indoors. And no manager can allow an employee to smoke indoors."

Where there are exemptions for residents, the person in charge of the premises must designate smoking rooms in writing. Smoking rooms must be clearly signed and must have mechanically-closing doors separating them from smoke-free areas. Communal smoking rooms in residential premises, such as care homes, should not be used for any other purpose - for example, watching TV - to make sure non-smoking residents are discouraged from spending time there and smokers spend no longer there than is necessary.

"These facilities easily become abused," notes Gray. "The next thing is people are taking drinks in there, then lunch, then it becomes an alternative canteen."

Ruth Bosworth, director of services at smoking-cessation charity QUIT, goes further. "We strongly advocate taking furniture out," she says. "Do not make that room comfortable."

Sign language

Organisations have to display no-smoking signs in smoke-free premises and vehicles. To ease the compliance burden, the Department of Health intends to make these available free of charge in the run-up to the ban.

In smoke-free premises, a sign must be "prominently visible" at all public entrances. The signs must:

• be flat, rectangular and at least A5 size (148mm x 210mm)
• display the international no-smoking symbol: a burning cigarette in a red circle, at least 75mm in diameter, with a bar across it
• state clearly: "No smoking. It is against the law to smoke in these premises" ("these premises" may be substituted for "this pub", "this restaurant", and so on).

In premises where smoking is allowed only in designated rooms, the signs must read: "No smoking. It is against the law to smoke in these premises except in a designated room." Smoke-free vehicles must display at least one prominent sign, featuring the no-smoking symbol, in any compartment used by operators, crew or passengers.

Mark Tyler, partner at law firm CMS Cameron McKenna, notes that because signage is often seen as "belonging in another manager's box", health and safety practitioners will need to liaise with colleagues in facilities and HR about meeting signage standards in buildings and vehicles.

The Department of Health is encouraging employers to display signs in languages other than English where appropriate to help promote compliance, and the Welsh legislation specifies signage in both English and Welsh. Ann Lowe, standards and legislation manager for safety signs at safety-products supplier Signs and Labels, says the primary language should always appear first on dual-language signs.

"Never site a safety sign on a background that will give poor colour contrast, so don't place a red sign on a red background, for example," advises Lowe, "and don't place too many signs together because that detracts from the message.

"Also, remember to choose the correct material and fixing method for your requirements, so self-adhesive vinyl for indoor use, rigid PVC for indoor or outdoor use, and polycarbonate for very harsh environments."

Don't fence me in

In anticipation of the legislation, there has been lots of publicity about shelters for smokers who will be forced outside. In deciding whether to provide smoking shelters for staff, employers must consider not only compliance with the new regulations, but other safety issues. If you put a shelter on the far side of a car park, for example, you will need to plan for safe movement of pedestrians between the building and the shelter. Decisions about shelters should form part of a wider consultation with employees and safety representatives on a comprehensive smoking policy.

As well as covering facilities for smokers, consultation could take in re-designation of any smoking rooms and the timetable for going smoke-free in anticipation of the 1 July deadline.

Providing shelters might be seen as counter-productive if employers want to use the legislation to encourage employees to quit. Camilla Peterken, director of Smokefreeworking, a company that offers support to smokers and organisations going smoke-free, believes shelters are not in the spirit of the legislation.

"I would encourage employers to think beyond the legislation," she says. "Some are doing that - saying we don't want any smoking in our grounds or car parks. And it's easier to do it now with the law behind you; it's a great opportunity. Anything that leaves things woolly for people doesn't make it easier for smokers." 

If you do decide to provide a smoking shelter, make sure it meets the requirements of the legislation. This may sound obvious, but you can't always rely on product manufacturers to get it right.

"Make sure you know your facts and ensure that any companies exhibiting their 'compliant' products meet the standard," says Ruth Bosworth. Avoiding costly mistakes may come down to going over any proposed refuge with a tape measure and a calculator to check it meets the 50% rule (see box below).

Doing it yourself is no guarantee of compliance either. One example Bosworth gives is of a pub garden where lots of umbrellas are used to create a makeshift "roof" to protect smokers from the elements; this could qualify as a substantially enclosed space, depending on the "walls" (permanent or otherwise) and openings. Peterken agrees: "Some of the awnings and imaginative solutions people are coming up with won't be compliant with the Regulations. Employers need to look carefully at the finer detail."

The government says it intends to create a "supportive environment" when it comes to enforcing the new law. The consultation document promises the approach will be "non-confrontational" and "focused on raising awareness and understanding".

Local-authority enforcement officers "will work closely with local businesses to build compliance through education, advice and support".

Down to penalties

But there is an iron fist in the velvet glove: employers and employees breaching the law face fines. Failure to display a no-smoking sign will incur a fine of up to £1000 on summary conviction but more likely a £200 fixed penalty (with a £50 discount if it is paid within 15 days).

Smoking in smoke-free premises or a smoke-free vehicle will cost the individual up to £200 if they are found guilty in court or a £50 fixed penalty (£30 for early payers). The highest fines are reserved for employers who fail to prevent smoking in their premises: courts may impose a fine of up to £2500 for this offence (there is no fixed penalty).

The Department of Health has awarded the CIEH the contract to train local-authority officers to enforce the new legislation. Lead trainer Ian Gray says the simplest way employers can ensure employees do not breach smoking rules is through employment contracts and their usual disciplinary policies.

"For the vast majority of employers, all they need are their existing personnel policies," he says. "Similarly with contractors, you make it a condition of contract that they comply with your smoking policy."

Tricky customers

Problems are most likely to arise in premises open to the public, particularly licensed premises.

Here, says Gray, the course of action is straightforward: ask the individual to put their cigarette out, explaining that you are breaking the law if you let them smoke; if they won't stop, then ask them to leave the premises; and if they refuse to leave the premises, tell them you will get assistance or call the police if necessary.

"As long as they have done all that, and made a record, then as far I'm concerned they don't get prosecuted," says Gray. "There will be some people who try it on, and what you want is the management to deal with it."

"Walk into a pub with your own bottle of whisky and see what happens. The management would deal with you, and that's all we're interested in," he adds.

Making a record of the incident and the action you took is important in case the local authority receives a complaint from a member of the public that there was smoking on the premises.

"There's a defence that you didn't know," notes Gray, "but I would be interested in why you didn't know. Have you got any staff? Did your regular customers not let you know? It wouldn't necessarily be a question of 'now I'm going to prosecute you', but rather 'let's look at why you don't know when people smoke'. Have you got any smoke alarms? Have you got any flame detectors? Have you got enough signage up? Do your staff know what they need to say?"

Ruth Bosworth believes clarity is the key to making the legislation work and achieving good levels of compliance. "The regulations and guidance are as clear and concise and appropriate as possible," she believes, "so that in the longer term people are able to police this by consensus."

Health ministers have committed the government to a "comprehensive" evaluation of the legislation within three years of its introduction.

Further information on going smoke-free is available at www.smokefreeengland.co.uk, www.smokingbanwales.co.uk or www.spacetobreathe.org.uk 

---

Smoke-free Q&A

• Do the smoke-free regulations mean I can stop employees taking smoking breaks?

The new legislation doesn't affect smoking breaks. Smoking breaks taken in addition to legal rest breaks are at the employer's discretion anyway - they are not a legal right. Employers can already require that employees smoke only during their contractual rest breaks during the working day.

• Employees who work regularly in other people's homes as part of their jobs are concerned about working in smoky atmospheres. Under the new regulations, will they be able to request that residents do not smoke when they are working in a private property?

The new regulations do not apply to work in any part of a private dwelling, so householders will not have to avoid smoking when a tradesman, cleaner, nanny or carer is present. The draft regulations suggest that the matter should be settled by the householder and the person at work. Ruth Bosworth of QUIT advises employers to consult employees to establish a policy on working in other people's homes, taking into account any service-level agreements with clients. She emphasises the need for good communication so residents know what is expected of them. "I think where problems have occurred it has been because people have turned up for an appointment and said, 'I can't come in now because you're smoking'," she says. "If you work in consultation with your staff team and with the clients you're visiting in a home setting, nine times out of 10 a mutual compromise can be reached." The Royal College of Nursing has produced best-practice guidance on protecting community staff from exposure to second-hand smoke; this is available to download at www.rcn.org.uk/publications/pdf/protecting_community_staff_smoke.pdf

• Are there any restrictions on where employees can smoke outside the building? Some of our staff are complaining that they are forced to breathe in smoke as they enter the office.

The regulations do not restrict smoking outside premises, but building owners and occupiers can introduce their own policies to restrict smoking in their own grounds, for example in car parks and around building entrances. Smoking policies should be developed in consultation with staff.

---

Enclosures: blue-sky thinking

• "Enclosed": premises will be considered to be enclosed if they have a ceiling or roof and, except for doors, windows and passageways, are wholly enclosed, whether on a permanent of temporary basis.
• "Substantially enclosed": premises will be considered to be substantially enclosed if they have a ceiling or roof, but there are openings in the walls which are less than half of the total area of walls, including other structures which serve the purpose of walls and constitute the perimeter of the premises. When determining the area of an opening, no account can be taken of openings in which there are doors, windows or other fittings that can be opened or shut. This is the "50% rule".
• "Roof" includes any fixed or moveable structure,including retractable canvas awnings.
• Tents and marquees will be classified as "enclosed" if they fall within the definition.

Source: Smoke-free (Premises and Enforcement) Regulations

---

Smoke-free workplace exemptions

The following places are exempt from the smoke-free regulations.

• Private accommodation - except for communal areas (such as shared stairways in blocks of flats) that are open to the public or are used as places of work (for example, by cleaners).
• Private vehicles, including vehicles rented for private use, and vehicles used for work by one person only.
• Designated bedrooms in hotels, guest houses, inns, hostels and members' clubs. Note that those in control of premises are under no obligation to designate any smoking rooms.
• Designated rooms in care homes.
• Designated rooms in hospices.
• Designated rooms in mental health units.
• Designated rooms in prisons.
• Premises hosting artistic performances where the "artistic integrity" of the performance makes it appropriate for a performer to smoke.
• Specialist tobacconists.
• Designated rooms in offshore installations.
   

Categories:
Chemicals, Construction, Public services, Retail and distribution, Transport, Utilities, Article, Financial / general services, Manufacturing / engineering, Smoking