A smoking gun - employers beware? - 31 May 2007

Smoking not only damages your health but it could well damage your balance sheet. From 1 July The Health Act 2006 bans smoking in most workplaces (with limited exceptions) or enclosed public areas in England, including vehicles.

Yet recent research by Royal & Sun Alliance showed that 42% of businesses are ill-prepared and unaware of the consequences of breaking the law. Employers risk a criminal prosecution and fines of up to £2,500 for breaching the ban, plus fines of up to £1,000 from environmental health bodies for failing to display no-smoking signage.

Importantly, the duty to prevent smoking falls on those controlling or concerned in the management of the premises. In practice, this could fall to relatively junior managers in many workplaces.

And fines aren’t the only way businesses suffer financially. Research by the Benenden Healthcare Society found that smokers take an extra 30 minutes in breaks every day and 8 more days’ sick leave pa than non-smokers.

So, there are both legal and practical reasons for businesses to take the new legislation seriously. Employers will be required to erect 'No Smoking' signs in prominent positions in work premises and vehicles.

Indoor smoking rooms will be banned. Employers are not obliged to provide external ‘smoking shelters’ but they may want to if a large number of staff are affected. Any such shelter must either have no roof or an opening which is greater than half of the area of its walls, in order to avoid being defined as "substantially enclosed" under the Regulations.

Providing smoking breaks is not obligatory unless it is covered in the employment contract or staff handbook. However, if employees have been taking their breaks for a number of years, they could claim ‘custom and practice’. As such, it is advisable to consult with staff. This includes negotiating on whether you allow breaks, allow your non-smokers the same breaks and whether you provide a designated outdoor space.

If you wish to remove the breaks altogether, you may need to substitute them with additional holidays or an increase in pay (either as a one off payment or a small increase to the wage/salary).

The Government is also keen that employers introduce incentives to encourage staff to give up smoking altogether. Recruitment policies could consider weeding out smokers, so that over time, all "smoke break entitlement" employees will leave the business.

Employer's liability for employees smoking at work seems harsh, but there is a defence. Employers must show they have taken reasonable steps to stop it, or that they did not know, and could not reasonably have known, it was taking place.

This defence includes creating a policy on smoking and communicating it effectively, outlining to whom and where it applies, who is responsible for enforcing the policy and the consequences of its breach. Practical measures include:

• Displaying no smoking signage prominently.
• Carrying out risk assessments of any outside smoking areas.
• Nominating someone to monitor and enforce the ban.
• Updating disciplinary procedures to include smoking as a dismissible offence.
• Keeping records of breaches and action taken to help defend against employer’s liability claims.
• Providing staff with support to quit smoking.