Nearly one in four employers thinks that they are already complying with upcoming anti-smoking legislation, when in fact they are not. This is despite having access to recent government guidelines.
In a Croner survey, 72 per cent of human resources professionals claimed that their organisation was already compliant with the forthcoming ban. But many still provided smoking rooms - leaving 24 per cent falsely believing that they had no work to do to bring their company up to date.
If employers remain unprepared for the smoking ban this could lead to a failure to protect the health and safety of their employees, and even leave them open to claims, and ultimately prosecution.
Current law
There is currently no specific legal requirement to ban or restrict smoking in the workplace. However, smoking is prohibited under some industry-specific legislation for safety reasons. Employers also have an implied duty to control passive smoking at work under the Health and Safety at Work etc. Act 1974.
As with Scotland’s smoking ban in March this year, the 2007 Health Bill in England will completely ban smoking in the vast majority of public spaces and workplaces, including outlawing the provision of smoking areas at work. The details of the new law are currently under public consultation and are expected to be confirmed in October.
In the absence of a law on workplace smoking, whether or not an organisation currently permits smoking or provides smoking areas is down to its culture. In some companies this can be influenced by whether senior personnel smoke themselves. In other companies, rules around smoking may have been decided through a democratic vote, which could be lenient towards smokers if a large proportion of employees smoke, or vice versa.
Plan ahead
Irrespective of company culture, all businesses in England must comply with next year’s smoking ban. Achieving an amicable solution that is fair to all employees takes time in terms of devising a smoking policy, making employees aware of it and training people to enforce it, which is why the message is clear – plan ahead.
Compliance with the legislation will not happen overnight, and will not be as straightforward as putting up "No Smoking" signs, as there are many other factors to consider.
For example, company cars are designated as workplaces in the guidelines, and, although we do not know at this stage if they will definitely fall under the smoking ban, employers should be considering how they will enforce this.
Employers could decide to take a "belt and braces" approach and ban smoking in company cars completely. If the car was only ever used by a smoker, the employer might allow the driver to smoke in it. But if the same car could potentially be used by a non-smoker at some point, the issue becomes unclear, and a blanket ban in the company becomes the simplest and safest option for employers.
Having said that, as with any major change in policy, the imminent smoking ban should be implemented carefully to address all smoking and non-smoking employees’ rights. Perhaps surprisingly, failure to attempt to come to an agreement with smoker employees could, in the very worst situation, lead to a claim from them for constructive dismissal!
Employers need to use this consultation period to consider their individual circumstances, formulate the best solutions for their company and start making changes to the company culture now to help make the transition to "smoke-free" as smooth as possible.
Top tips for creating a smoke-free workplace
- All current policies on smoking at work should give priority to the needs of non-smokers who do not wish to breathe tobacco smoke, if a ban is not justifiable on safety grounds.
- Changes to the smoking policy must be implemented in consultation with employees, who will therefore be more likely to abide by them.
- Ensure staff are suitably trained in implementing these procedures.
- Make sure that the transition period is adequate. An acceptable amount of time between the policy being advertised and the date of its actual implementation is commonly about three months. Offer support to those employees who wish to give up smoking by having information available on how to stop.
- Display approved "No Smoking" signs.
Any employer unsure of their requirements under the new legislation, or if their organisation is exempt from the ban, should seek professional advice.
Croner, part of Wolters Kluwer (UK) Limited, provides legal guidance and best practice advice and support in human resources, health and safety, education and healthcare, environmental management, manufacturing and construction, and international trade and transport.
