The Legal 500

In July the government issued a consultation on the Smoke-Free (General Provisions) Regulations. These Regulations will form part of the smoke-free regime that will be implemented in summer 2007 by the Health Act (currently the Health Bill). The consultation closed on 9 October 2006.

Smoke-free legislation: key points

The Health Act will impose a blanket ban on smoking in enclosed and substantially enclosed workplaces and public places. Most workplaces will be caught by the ban, as ‘substantially enclosed' is defined as premises with a ceiling or roof unless more than half of the walled area is open to the outside (excluding windows and doors).

Exceptions

There will be a number of minimal exceptions, for example hotel rooms and prisons. There will be no exceptions in relation to pubs, restaurants or designated smoking rooms in the workplace, so employees unable to kick the habit will have to brave the elements.

The smoke-free legislation imposes an obligation on employers to display a no-smoking sign prominently at each public entrance to the premises. This must satisfy certain specifications:

• it must be a rectangle no less than A5 in size;

• it must display the international no-smoking symbol; and

• it should state: ‘No Smoking. It is against the law to smoke in these premises.'

Company vehicles will also be designated smoke-free areas if they might be used by more than one person (regardless of whether they are in the vehicle at the same time). The only exception is if the car is a convertible with the roof down. At least one no-smoking sign must be displayed in the vehicle - this could simply be the international no-smoking symbol.

Offences, penalties and enforcement

It is proposed that there will be three types of offence:

• not displaying a prescribed no smoking notice in a smoke-free premises/smoke-free vehicle;

• failing to act to prevent smoking in a smoke-free premises/vehicle; and

• knowingly smoking in a smoke-free premises/vehicle.

Breach of the first offence can give rise to a fixed penalty of £200 (discounted to £150 if paid within 15 days). Failure to prevent smoking can give rise to a fine of £2,500. Smoking tobacco in smoke-free premises will be subject to a prescribed fine of £50 (discounted to £30 if paid within 15 days).

Enforcement will be carried out by various enforcement authorities, including County Councils, District Councils and London Borough Councils. The appropriate officer will have the power to inspect premises and to bring prosecutions for any offence under the legislation.

Before the Health Bill is implemented next summer, employers who permit employees to smoke in the workplace either at their desks or in designated smoking areas will need to amend internal policies to prohibit such smoking. Internal disciplinary procedures may also need to be amended to make it clear to employees that smoking in the workplace will be a disciplinary offence, given that both the individual and the employer will be guilty of an offence should the employer turn a blind eye to employees having a crafty cigarette.

Constructive unfair dismissal claims

In the past, where employers have introduced a no-smoking policy in the workplace, some employees have attempted to bring constructive unfair dismissal claims on the grounds that the introduction of a smoking ban amounted to a material breach of the contract of employment. In the case of Dryden v Greater Glasgow Health Board the Employment Appeal Tribunal (EAT) considered such a claim and held that the introduction by the employer of a new policy prohibiting smoking in the workplace fell into the category of a ‘works rule'. Such a works rule had no contractual effect and therefore could not be used as a foundation for a constructive dismissal claim.

Employers are entitled to make rules for the conduct of employees at work within the scope of the contract. The introduction of such a new works rule did not breach the implied term of trust and confidence and neither was there an implied term in the employee's contract that smoking was permissible. The EAT found:

‘... where a rule is introduced for a legitimate purpose, the fact that it bears hardly on a particular employee does not, in our view, in itself justify an inference that the employer has acted in such a way as to repudiate the contract with the employee.'

This case can be contrasted with the EAT decision in Waltons and Morse v Dorrington. The case was brought by a non-smoking secretary in a firm of solicitors who complained over a period of time about the unacceptable working environment caused by her colleagues smoking around her. The employers did nothing about her complaint, and she eventually resigned and claimed constructive unfair dismissal. The EAT upheld her claim, finding that it was an implied term of the contract of employment 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.'

In the case of smoking itself, the EAT found that if there was inadequate ventilation it was always possible for the employer to comply with this implied term by simply requiring the smoking employees to stub out their cigarettes.

Proactive approach to the problem

From a practical perspective, employers should give employees as much notice as possible of any changes to internal policies on smoking. They could also take a proactive lead in encouraging the workforce to give up smoking, with the assistance of their own occupational health departments and/or health clubs and gyms where membership is provided or subsidised by the employer.

Dryden v Greater Glasgow Health Board [1992] IRLR 469

Waltons and Morse v Dorrington [1997] IRLR 488

By Tania Stevenson, professional support lawyer.