Preparing For The New Smokefree Laws

25th May 2007

The smoking ban in England comes into force at 6.00am on 1 July 2007.  The legislation will make it a criminal offence to smoke or permit smoking in any workplace that is “enclosed” or “substantially enclosed”.  All workplaces must become and remain smokefree. 

Where must be smokefree?

The new law will apply to virtually all “enclosed” and “substantially enclosed” public places and workplaces.  This includes both permanent structures and temporary structures, for example, tents and marquees.  The prohibition also affects private members clubs, vehicles and dwellings when used as a workplace.

• Premises are “enclosed” if they have a ceiling or roof and (except for doors, windows or passageways) are wholly enclosed either on a permanent or temporary basis.
  
• Premises are “substantially enclosed” if they have a ceiling or roof, but have an opening in the walls, which is less than half the total area of the walls.  The area of the opening does not include doors, windows or other fittings that can be opened or shut.

Some Councils (Westminster in the example below) have issued guidance as to what may or may not be acceptable.
 

Smokefree vehicles

Vehicles will need to be smokefree if they are used to transport members of the public or they are used in the course of paid or voluntary work by more than one person regardless of whether they are in the vehicle at the same time.  Therefore a company vehicle that is only used by one person may permit smoking. If the vehicle is shared then it must be smokefree.

Are there any exemptions?

Very few premises will be exempt from the new law and these will be subject to very strict conditions.  The exemptions are as follows:

1. Hotels, inns, hostels, guesthouses and private members clubs that provide sleeping accommodation may designate individual guest bedrooms for smoking, but all other parts of the premises must be smokefree. 
2. Care homes, hospices and prisons may designate either individual bedrooms or rooms to be used for smoking.
3. Residential mental health units may designate either individual bedrooms or rooms to be used for smoking. 
4. Offshore installations may designate rooms to be used for smoking. 
5. Specialist tobacconist shops may allow people to sample cigars or small amounts of pipe tobacco within the shop premises.  Smoking of any other product including cigarettes will be prohibited.
6. Research and testing facilities may designate certain rooms for smoking only while the rooms are being used for any research or testing activities specified in the new smokefree law.
7. Where the artistic integrity of a performance makes it appropriate for a person to smoke, the part of the premises the person performs will not be required to be smokefree.  This exemption does not apply to rehearsals.

What conditions must be met for designated bedrooms?

Smoking is permitted in a designated bedroom so long as:

• it is set apart exclusively for sleeping accommodation.
  
• it is designated by the person having charge of the premises as a room where smoking is permitted.
  
• it has a ceiling and is completely enclosed save for doors and windows.
  
• it does not have ventilation system that ventilates into any other part of the premises.
  
• any door from the designated room closes mechanically, immediately after use.
  
• it is clearly marked as a bedroom which allows smoking.

If all the conditions above are not met then the room cannot be used for smoking and will need to be smokefree at all times.

What about health and safety of employees who work in premises with exemptions?

Employers still have a duty of care under the Health and Safety at Work Act 1974 and should consider what needs to be done to minimise the exposure of the employee or otherwise to protect that employee from the affects of exposure to second-hand smoke. 

Does the law only apply to cigarettes?

The new law covers all substances that a person can smoke.  This includes cigarettes, hand rolled cigarettes, pipes, cigars, herbal cigarettes and water pipes (including shisha, hookah and hubble bubble).

What needs to be done now?

Planning permission, is required for any structures that may need to be erected either on a permanent or temporary basis. Landlord’s consent, if premises are held under a lease (depending on its terms), listed building and conservation area consent may also be required for any such structures and signage (as below). Consent in respect of any licence held for the sale of alcohol may also be required depending upon the type and terms of the licence.  Local interpretation of the Act, regulations and relevant planning policy will vary from local authority to local authority. Examples include fixing space heaters to walls, opening up rear walls by altering any windows or doors and attaching retractable blinds to the building.

Signage

All smokefree premises and vehicles will need to display no smoking signs.  The signs must be displayed in a prominent position at every entrance.  Signs must meet the following requirements:

• be a minimum of A5 in area (210mm x 148 mm).
• display the international no smoking symbol at least 70 mm in diameter.
• carry the following words in characters that can be easily read: 

“No smoking.  It is against the law to smoke in these premises”

A smaller sign consisting of the international no smoking symbol at least 70 mm in diameter may instead be displayed at entrances to smokefree premises that:

• are only used by members of staff – providing the premises displayed at least one A5 area sign
  
• are located within larger smokefree premises, such as a shop within an indoor shopping centre.

Penalties and Enforcement

Local authorities will be responsible for enforcing the new law.  Anyone who does not comply with the new smokefree laws will be committing a criminal offence.  A fixed penalty notice and maximum fine for each of the offences are as follows:

Businesses may also wish to introduce a smokefree policy to ensure that employees are aware of the new law and that they now work in a smokefree environment. It will advise them on what they need to do to comply with the new law.

Please click here to view the NHS smokefree policy.

© Davenport Lyons 2007. All rights reserved.
This document reflects the law and practice as at May 2007. It is general in nature, and does not purport in any way to be comprehensive or a substitute for specialist legal advice in individual circumstances.