Smoking


The Health Act 2006 banned smoking in most enclosed workplaces and public places. The Act created the offences of “smoking in a smoke-free place” and “failing to prevent smoking in a smoke-free place” for anyone (for example, an employer) who “controls or is concerned in the management of smoke-free premises”. There is a separate duty on the drivers of smoke-free vehicles to prevent smoking. The ACOP to the Workplaces Regulations advises that where smoking in any area of the workplace or any rest area is not prohibited by law (for example, some care homes or prisons), non-smokers should be protected from experiencing discomfort from tobacco smoke. Staff who provide care or other services in residential rooms where the users are permitted to smoke must be provided with a separate, smoke-free rest room or rest area.


Premises and enforcement


Smoking is prohibited in any workplaces or public places which are “enclosed” or “substantially enclosed”. This means premises that have a ceiling or walls at least half the way around, including doors and windows. Temporary or moveable walls or roofs (such as awnings) also count as substantially enclosed. Local authorities enforce the regulations.


Exemptions


There are some exemptions to the smoke-free law. These include private accommodation; accommodation for guests and club members such as hotels, other residential accommodation such as care homes, performers, specialist tobacconists, offshore installations, and research and testing facilities. But the ban extends to mental health units.


Private homes are exempt from the ban with some caveats. Smoking is not banned on premises where the owner or resident requires personal health care services or assistance with domestic or maintenance services. However, the ban does extend to homeworkers in their own homes if any part of the dwelling is used solely for work purposes and is also used by a person who does not live there. Communal areas in blocks of flats that are also a place of work for porters, cleaners and postal workers are not exempt from the ban.


There are some limited exemptions for workplaces where people also reside, such as care homes. In these workplaces, smoking is allowed in either a bedroom or a designated smoking room, but only by residents and their guests. Employees are not allowed to smoke on the premises (except in smoking rooms on offshore platforms). Hotels and guest houses may allow smoking in designated bedrooms. To gain these exemptions, the rooms have to be designated in writing by the person in charge of the premises as rooms where smoking is permitted. The rooms must not have a ventilation system which vents into other parts of the premises.


Smoking in vehicles


The regulations also cover work vehicles. Vehicles that are only ever used by one person with no passengers are exempt from the ban. An employee’s own vehicle is also exempt unless it is being used for hire or as a work vehicle by more than one person. The regulations impose a duty on the driver and on any person with management responsibilities for a smoke-free vehicle to prevent smoking in the vehicle.


In October 2015, the Smoke-free (Private Vehicles) Regulations came into force, banning smoking in any car where anyone under the age of 18 is present. The measure, designed to protect children from the potential adverse health effects of passive smoking, will result in a £50 fine for anyone caught in breach of the new law. Convertible cars with the top all the way down will be exempt from the law.


No Smoking Signs


Employers must display at least one no-smoking sign in premises and appropriate vehicles. Since 1 October 2012, owners and managers have been free to decide the size, design and location of the signs.


Evaluating the health effects of the smoking ban


A 2008 Department of Health evaluation of the smoke-free regulations found that after the introduction of the smoking restrictions, nicotine levels — an indicator of exposure to tobacco smoke — in the blood of non-smoking bar workers were on average reduced by about three-quarters (-76%). Prior to the smoke-free legislation, non-smoking bar workers were found to be inhaling up to six times as much cigarette smoke as the average non-smoker member of the public.


Smoking shelters


The government’s Smokefree England website advises that employers are not obliged to provide smoking shelters: “It is common for health-focused employers not to spend money creating places for smokers to congregate. If you do have an outside smoking shelter or area, you will need to be sure that it is not ‘enclosed’ or ‘substantially enclosed’.”


The regulations do not cover open public spaces, and there is no legal requirement to stipulate a distance away from the building where smoking can take place. Smokefree England also states that it is up to employers to resolve issues such as breaks and matters such as paid time off to help smokers give up.


E-cigarettes


The Welsh government’s Public Health Bill, which included restrictions on the use of e-cigarettes, failed to gain the approval of Assembly members and will not now become law. The proposed ban would have applied to premises where there is a potential risk to children, including schools, hospitals, eating places and on public transport.


The TUC argues that although e-cigarettes are not covered by the legal ban on smoking in enclosed workplaces, there is no place for them in the workplace. Although they are likely to be less harmful to smokers than tobacco, it points out that their sale is unregulated, there is very little evidence as to their safety and their ingredients and quality can vary considerably.


The TUC strongly recommends that unions should ensure that electronic cigarettes are subject to the same restrictions in the workplace as tobacco. “They should not be used in any indoor place. This is because the risk to others is unknown, but also because it can be confusing if people are seen to be smoking what can look like tobacco. This undermines the smoking ban”, it argues. “However employers and health campaigners may wish to promote the use of electronic cigarettes for existing smokers to help them give up, on the understanding that they only use them when they would normally smoke a cigarette and not anywhere that smoking is restricted.”


Health and Safety Executive (HSE) advice is: “If an employer decides to ‘prohibit’ the use of e-cigarettes in the workplace but allow for ‘vaping’ breaks or provide areas where employees can use e-cigarettes, the employer needs to ensure that those who use e-cigarettes are not put at risk of harm from second-hand tobacco smoke.”