Kicking the Habit
The Smoking, Health and Social Care (Scotland) Act 2005 came into force on 26th March 2006. This will now create smoke free environments in most enclosed public places, including workplaces. There are however certain exemptions which are defined further in The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006.
It is important to understand the ramifications of the Regulations and how they affect different industries in different ways as it means employers, employees, customers and visitors are not allowed to smoke in the enclosed areas of your premises.
Productivity and Health
Smoking has always been associated with various illnesses and smokers generally are more likely to be absent through illnesses such as coughs, colds and flu. Restricting smoking in the workplace does not necessarily turn smokers into non-smokers, but it would increase the likelihood that smokers will try to quit (and maybe assist them!), and hopefully they will succeed. Given that around 71% of smokers say they would like to give up, a no smoking atmosphere would increase the chances of them succeeding as some of the temptation, at work at least, would be removed. The employer could further assist by introducing a cessation programme with the aim of supporting smokers wishing to quit. This may also have a knock-on effect on the absenteeism rates as the employee’s general health improves.
A study in Scotland found that 93% of workplaces had smoking policies, of these 34% had completely smoke free buildings and 53% of workplaces had smoking only in designated “smoking rooms”. The estimated cost of smoking related absences in Scotland is around £40 million per annum. Total productivity losses are around £450 million per annum. In addition, the resource cost in terms of losses from fires caused by smoking materials is estimated at approximately £4 million per annum. There are also other issues such as the cost of smoking related deaths and damage to premises. The study also found that the introduction of smoking cessation schemes achieved positive results in productivity and workplace attendance that far outweighed the cost of the scheme itself.
Legislation
There has always been a duty upon employers to provide smoke free environments under various pieces of legislation including:
| • | The Health and Safety at Work etc, Act 1974 (HASWA); |
| • | Management of Health and Safety at Work Regulations 1999, as amended; and |
| • | Workplace, Health Safety and Welfare Regulations 1992. |
Although HASWA has always placed duties on employers under Section 2(1) to ensure, so far as reasonably practicable, the health, safety and welfare at work of all employees, it is not explicit, and no prosecutions for smoking have been brought under this Act.
Offences under the new Act
| • | it is an offence for a person having management control of a no smoking premises to permit others to smoke there; |
| • | it is an offence for a person to smoke in a no smoking premises; |
| • | it is an offence if ‘No Smoking’ signs are not clearly displayed; and it will be an offence to smoke there or knowingly permit a person to smoke there; and |
| • | it is an offence to fail, without reasonable cause, to give one’s name and address on request by an Enforcement Officer. |
Requirements for compliance
Non-smoking premises must display at least one no smoking sign. This notice must be clearly displayed as to be visible to, and legible by, persons approaching the premises. The sign must comply to the standard set out below:
| • | be a minimum size of 230 mm by 160 mm; |
| • | display the international “no smoking” symbol at least 85 mm in diameter; and |
| • | display the name of the person to whom a complaint may be made if a person is seen smoking in the premises. |
The remainder of ‘No Smoking’ notices displayed must have the international ‘No Smoking’ symbol at least 85 mm in diameter.
A person having the management control of no smoking premises must take all reasonable precautions and exercise all due diligence to ensure that all staff, visitors and customers do not smoke on the premises. This includes the removal of ashtrays.
Peninsula Comment
Meanwhile, as most people will be aware, 14th February 2006 was not just a day for lovers but it was also a day for non-smokers, when Parliament voted to ban smoking in all public places in England and Wales. Initially the Government had proposed making exemptions for members clubs and pubs which do not serve food. However, MP’s voted on a total ban in enclosed areas with the exception of private homes, residential care homes, hospitals, prisons and hotel rooms, as they are considered to be a place of residence. This will now need to be passed by the House of Lords but is expected to come into force in the summer of 2007. A proposed ban is expected to come into force by April 2007 in Northern Ireland.