Article
One: How to Avoid Choking on the Smoke-free Law by Clarks Legal
From 1st July 2007 employers in
England will have to ensure that their workplaces are kept
smoke-free. Any employees who ignore the rules risk exposing their
employers to fines and even potential claims from other employees.
Employers who fully comply with
the Health Act 2006 will avoid prosecution for the offences under
the Act, namely a failure to display no smoking signs and to prevent
smoking on smoke free premises. However, the arrangements employers
make to comply, and how these are implemented, pose different risks
and, in some cases, could give rise to other claims. Follow our
Top10 tips to keep you and your employees safe!
1. Order surplus signs
Don’t get caught out if a sign
is removed or vandalised. Have extra signs readily available and
designate someone with responsibility to check signs regularly and
erect new signs if needed. Display additional signs in other areas,
not just at entrances, where a person may have a reasonable
expectation that smoking is permitted without any evidence to the
contrary.
2. Encompass doorways in the
ban
The distance from smoke free
premises at which smoking is allowed is not specified in the
legislation. On a strict interpretation, unless the entrance/exit is
“substantially enclosed” people will be permitted to light up
the instant they get outside and smoke in the immediate area.
However, this will expose others entering or exiting the building to
second hand smoke and is against the spirit of the law. Avoid any
potential problems by prohibiting smoking within a specific area of
all entrances e.g. five metres.
3. Manage and control smoking
outdoors
Smoking outdoors could damage the
image and reputation of the business. If cigarette litter builds up
around your premises you may be fined, so adequate provision should
be made for proper disposal of cigarette butts and other litter
generated in outdoor smoking areas. Precautions should also be made
to prevent other pollution, such as noise, odour and light. In some
cases, it may be necessary to control antisocial behaviour.
4. Introduce rules on when
employees can smoke
The regulations are only
concerned with where smoking is permitted but you should also advise
employees when smoking is permitted. If you do not allow breaks
during working hours you should confirm that smoking is only
permitted in the employee’s own time. If breaks are permitted
these should be applied consistently to smokers and non-smokers and
have clear rules. Smoking at unauthorised times, taking long or too
many breaks should be communicated as a disciplinary offence.
5. Record all incidents and
any action taken
Employers may be able to avoid
prosecution for a failure to prevent smoking if they can show that
they took reasonable steps to do so. You should therefore make it a
condition that any known breaches are recorded, together with any
action taken. This can then be used in evidence to show due
diligence in support of a defence.
6. Agree action to be taken in
the event of a breach
Be prepared to deal swiftly and
effectively with any breaches. Enforce your rules with employees
through use of the disciplinary procedure. Contractual terms with
other organisations or consultants should confirm the consequences
of breaching your company’s smoke free workplace policy. Ensure
arrangements are in place to deal with the lawful expulsion of any
person, if the need arises.
7. Provide adequate guidance
on confronting smokers
Managers and other staff in
control of smoke premises have a legal duty to prevent smoking and
will be expected to confront smokers, if the need arises. However,
employers also have a statutory duty to care for the employee’s
safety and they should not be exposed to unnecessary risks.
Breaching this duty could give rise to a claim of constructive
unfair dismissal and/or personal injury claims. Therefore, it is
important that you give adequate information or training to staff on
how to deal with such situations. You should also confirm that, if
there are genuine concerns for personal safety, the matter should be
reported and will be dealt with by more appropriate personnel or the
police.
8. Consult staff on proposals
to implement the Heath Act 2006
Although prohibiting smoking is
necessary to ensure legal compliance, employers are advised to
consult with staff and/or trade unions on the specific provisions of
the policy, particularly where any current smoking permissions are
to be withdrawn. Failing to consult could lead to formal grievances
which take up valuable management time. Unilaterally changing terms
and conditions is a breach of contract, which in some cases could
entitle an employee to resign and claim constructive unfair
dismissal. Changing terms includes the withdrawal of a right or
privilege which the employee has come to regard as part of their
terms and conditions through custom and practice, even if the right
is not confirmed in writing, and could apply to smoking breaks.
9. Effectively communicate
your expectations
Employers are advised to develop
a comprehensive Smoke Free Workplace Policy to confirm the
arrangements in place and to ensure all employees are aware of their
responsibilities and the consequences of non-compliance. Your policy
should be communicated to all employees and brought to the attention
of any other users of the premises. Potential applicants should be
advised during the recruitment process if smoking is prohibited or
restricted to certain areas and at certain times.
10. Be consistent
Finally, treat employees who
breach the policy in a fair and consistent manner through the
application of your disciplinary procedure. Make sure the
information you give to employees is not ambiguous. Your
disciplinary policy, and any home working and/or car policies,
should also be updated to include any provisions you make in the
Smoke Free Policy.
Clarkslegal is a leading commercial law firm with a proven track
record across the UK and overseas, with clients ranging from small
to medium-sized enterprises to multi-nationals. With offices in
London, Reading, Cardiff and Swansea, Clarkslegal has extended its
reach into new local markets as well as improving its national
capabilities. To contact email contact@clarkslegal.com
or visit www.clarkslegal.com.
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