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Broadly speaking, the government is proposing to introduce a smoking ban in public places and workplaces. The relevant legislation will be phased in gradually. According to the draft timetable, by the end of 2006 all central government departments and the NHS will be smoke free; by the end of 2007 all enclosed public places and workplaces, other than licensed premises and specifically exempt premises, will be smoke free; and by the end of 2008 arrangements for licensed premises will be in place.
There are a number of exceptions to the smoking prohibition in relation to, for example, hotel rooms, places of detention, and oil and gas platforms. However, there does not appear to be any exception in relation to designated smoking rooms in the workplace, so it would appear that employees desperate for a puff will have to brave the elements.
Offences
It is proposed that there will be three types of offence in relation to the smoking ban:
- failing to display a prescribed 'no smoking' notice in smoke-free premises;
- failing to act to prevent smoking in smoke-free premises; and
- knowingly smoking in smoke-free premises.
Breach of the first two offences can give rise to a fine of up to level one (at present £200). Anyone who smokes tobacco in smoke-free premises will be subject to a prescribed fine of £50.
Enforcement will be carried out by 'appropriate local authority enforcement officers', such as trading standard officers, technical officers and environmental health officers. The appropriate officer will have the power to inspect premises and to bring prosecutions for any offence under the legislation.
If these proposals are implemented, employers who currently permit employees to smoke in the workplace, either at their desks or in designated smoking areas, will need to introduce a total ban. If employers simply turn a blind eye to smoking in the workplace, they and the smokers will be guilty of an offence. Internal disciplinary procedures may need to be amended to make it clear to employers that smoking in the workplace will be a disciplinary offence.
Unfair dismissal claims
Some employees have attempted to bring constructive unfair dismissal claims when their employer introduced a no-smoking policy in the workplace, on the grounds that the introduction of the ban amounted to a material breach of the contract of employment.
Fortunately, in the case of Dryden v Greater Glasgow Health Board the EAT held that the introduction of a new non-smoking policy amounted to a 'works rule' which had no contractual effect and therefore could not be used as a foundation for a constructive dismissal claim. It considered that employers are entitled to make rules for the conduct of employees that work within the scope of the contract and the introduction of a new works rule did not breach the implied term of trust and confidence. It also held that there was no implied term in the employees' contract that smoking was permissible.
Comment
As workplaces will almost certainly become smoke-free zones, employers should give staff as much advance notice as possible of changes to internal policies on smoking. Employers should also consider taking a proactive lead in encouraging the workforce to give up smoking with the assistance of internal occupational health departments and/or health clubs and gyms, where membership is provided or subsidised by the employer.
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