The government is planning to issue a smoking ban in public places. Kelly Mansfield urges facilities managers to carefully consider a smoking policy for the workplace
25 June 2004
California banned smoking in most indoor workplaces in 1995, including in the non-bar areas of restaurants. A recent temporary exemption for more than 35,000 bars, casinos and bar-restaurants ended on 1 January this year. This was not an act meant to criminalise smoking, state officials said, but to give employees a workplace free of second hand smoke, which has been linked to lung cancer, respiratory problems and other illnesses. New York city has recently followed suit, having banned the habit in bars, certain restaurants, betting shops, bowling alleys, pool clubs and even company cars and calls for fines up to $1,000 per violation. In March this year the Irish government banned smoking in all places of work, including bars, night clubs and restaurants. And Norway introduced a similar policy at the beginning of this month.
Now, the UK government is planning to do the same and will enter the next election with a pledge to ban smoking in public places. This goes against previous statements from the government, which has always said that it prefers the idea of a voluntary code which offers employers the choice of banning smoking, rather than an outright ban by law. The new policy will be enshrined in Labour Party policies.
Facilities managers should take a serious look at their organisation's smoking-at-work policy, in light of the government's change of heart. Bob Cotton, chief executive of the British Hospitality Trade, has already thrown in the towel over the fight against a smoking ban. Cotton is now urging industry colleagues to lobby the government to establish a framework for a national ban so that they can at least influence the final arrangement. He concedes that the voluntary approach of the Charter Group to curbs on smoking is over. Labour is hoping to implement the ban in individual areas of the UK, such as London and Scotland, initially, therefore easing the progress of the country-wide ban.
To make matters even more serious for businesses, employees, who have been exposed to passive smoking at work, may be encouraged to take legal action against their employees, following aggressive statements made by the charity Action on Smoking and Health (Ash) and personal injury law firm Thompsons.
In January, Ash and Thompsons sent a letter to all the UK's leading hospitality trade employers, warning them that the 'date of guilty knowledge' under the Health and Safety at Work Act is now past, and that employers should know the risks of exposing their staff to second hand smoke. Ash estimates that at least three million employees are still routinely exposed to second hand smoke at work - many work in the hospitality industries, including hotels, pubs and restaurants.
Deborah Arnott, director of Ash, argues that: "Every employer in Britain should know by now that second hand smoke is dangerous to the health of their employees. There is no moral excuse - and we believe no legal defence - for continuing to expose employees to such an unnecessary health and safety risk. If the hospitality trade and other employers continue their stubborn failure to act over the clear warnings they have now received, then the issue will be decided in the courts".
John Hall, solicitor at Thompsons, makes the case for more employees to seek court action: "Employers have no more right to allow smoke in the workplace than they do to allow asbestos or coal dust. They need to stop smoking in the workplace, or they will face legal action from those who are made ill as a result. We intend to give employees whose health has been damaged by second hand smoke at work the information and support they need to bring cases for compensation. And we intend to use court actions to oblige irresponsible employers to face their legal and moral responsibilities for the health and safety of their employees".
But what is the current legal position? Smoking in the workplace is an everyday issue for facilities managers in terms of protection of staff from passive smoking and the regulation of the working environment. There is currently no direct obligation on employers to protect employees from the effects of tobacco smoke, but there is a general duty under the Health and Safety at Work Act 1974 to ensure the health, safety and welfare of employees at work. This duty is almost certainly broad enough to include the effects of passive smoking - ban or no ban. The courts have also tended to imply a right to protection for employees in the workplace, stating that there is a term implied into employment contracts that: "The employer will provide and monitor for his employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties".
Applying this formula, a court found that a non-smoker was constructively dismissed (that is, there was a serious breach of her employment contract) as a result of being required to work in an atmosphere affected by smoke despite her protests that it made her ill.
The Health and Safety at Work Act 1974 also imposes a general duty on employers to protect people who are not employees themselves, but may be affected by an employee's activities. Therefore facilities managers must take care to consider the effect of employees smoking when they come into contact with members of the public or other organisations during their working day. Ultimately, of course, this may be subject to new legislation.
Employers which choose to introduce anti-smoking measures before any nationwide ban must take care that by doing so they are not seen to be victimising smokers, who may previously have enjoyed an unfettered right to smoke in the workplace, in order to avoid the possibility of them claiming unfair constructive dismissal. The best way to avoid this problem is to introduce a reasonable and carefully considered smoking policy - whether the government introduces a national ban or not.
Kelly Mansfield is an editor at the Workplace Law Network