England goes smokefree on 1 July 2007

Premises will be considered 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 will be considered 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 any other fittings that can be opened or shut.

hotels, inns, hostels, guesthouses and members’ clubs that provide sleeping accommodation may designate individual guest bedrooms for smoking, but all other parts of the premises must be smokefree. Dormitories and other shared accommodation that is made available under separate arrangements must be smokefree at all times

care homes, hospices and prisons may designate either individual bedrooms or rooms to be used only for smoking for use by persons over 18 years of age

residential mental health units may designate either individual bedrooms or rooms to be used only for smoking for use by persons over 18 years of age. This exemption applies only until 1 July 2008 when they are required to become smokefree

offshore installations may designate rooms to be used only for smoking

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

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.

More details on the exceptions can be found on pages 18-20 of Everything you need guidance (pdf, 5.4MB).

Employees who work in exempted premises
Even with the new smokefree law, employers will still have a general duty of care under the Health and Safety at Work Act. Where it is considered to be unavoidable for employees to be exposed to secondhand smoke in their workplace, then the employer must consider what needs to be done to minimise the exposure of the employee or otherwise to protect the employee from the effects of exposure to secondhand smoke.  The HSE has some advice on what employers should do here. In brief, this states:

Health and Safety legislation will continue to require employers, in premises permitted exemptions under the smoke-free law, to reduce the risk to the health and safety of their employees from second hand smoking to as low a level as is reasonably practicable. In exempted premises, HSE will continue to promote a sensible, proportionate management of second hand smoking to as low a level as is reasonably practicable and to encourage employers to adopt smoking policies in the workplace which give precedence to the wishes of non-smokers not to be exposed to second hand smoking.

Even with new smoke-free legislation, HSE’s advice on protecting employees from the effects of second hand smoke remains unchanged in that:

1.        Employers should have a specific policy on smoking in the workplace.

2.        Employers should take action to reduce the risk to the health and safety of their employees from second hand smoke to as low a level as is reasonably practicable. 

3.        Smoking policy should give priority to the needs of non-smokers who do not wish to breathe tobacco smoke.

Employers should consult their employees and their representatives on the appropriate smoking policy to suit their particular workplace.

The TUC has produced a general guide on negotiating smokefree workplaces (pdf, 184KB), which includes a draft policy at the end. Where your employer claims an exemption from parts of the smoke-free restrictions it is important that your union is involved in discussions on how the exemptions are introduced.

In prisons, mental health units, oil and gas platforms, hospices and care homes, while smoking by residents is permitted, this does not mean that the employer does not have a duty to protect staff. Workers in these areas have exactly the same rights to work in a smoke-free environment as other workers and any designated areas must be the exception rather than the rule. They cannot be rooms used by other residents for other purposes such as TV, games, rest or eating. Staff should not work in areas where smoking is permitted. Nor can they use these rooms to smoke themselves. Any designated smoking rooms must have mechanically closing doors and preferably separate ventilation.

Workers visiting clients in their homes
The TUC has also written guidance for people visiting clients in their homes (pdf, 42KB). Workers visiting clients in their home are not directly covered by the provisions of the Health Act. However union representatives will wish to ensure that employees are protected when visiting clients in their homes. This issue is also covered in the TUC’s general guide on negotiating smokefree workplaces (pdf, 184KB).

Safety representatives and stewards will not wish to restrict the right of individuals to take part in a legal activity in their own homes, but employees also have a right not to be exposed to second-hand tobacco smoke. This is best done by seeking agreement with the employer that they will introduce guidance on this issue. In some cases it may also be appropriate to add smoke-free conditions into any service agreements with clients. All those who are visited regularly should be notified of the guidance or conditions in advance. The employer should ask any service users or clients who are visited regularly not to smoke for a certain period prior to any pre-arranged visit and during a visit. The client should also ensure that no-one living in the house with them smokes at that time. Clearly where a client or patient is suffering from dementia or some other illnesses this may be difficult to enforce and some tact may be required.

No smoking signage
All smokefree premises and vehicles will need to display no-smoking signs that make it clear which premises and vehicles are smokefree and demonstrate that the necessary steps to meet the requirements of the new smokefree law have been taken. Standard signs as pictured below can be downloaded here, and can be ordered here. More information on signage can be found here.

The fixed penalty notices and maximum fine for each offence are:

Smoking in smokefree premises or work vehicles: a fixed penalty notice of £50 (reduced to £30 if paid in 15 days) imposed on the person smoking. Or a maximum fine of £200 if prosecuted and convicted by a court.

Failure to display no-smoking signs: a fixed penalty notice of £200 (reduced to £150 if paid in 15 days) imposed on whoever manages or occupies the smokefree premises or vehicle. Or a maximum fine of £1000 if prosecuted and convicted by a court.

Failing to prevent smoking in a smokefree place: a maximum fine of £2500 imposed on whoever manages or controls the smokefree premises or vehicle if prosecuted and convicted by a court. There is no fixed penalty notice for this offence.

Smoking-related litter: Smoking-related litter covers items such as cigarette ends, matchsticks and discarded cigarette packets. The offence of ‘Leaving Litter’ (section 87 of the Environmental Protection Act 1990) is a criminal offence and either the police or local authority can prosecute people who drop litter. Local authority officers and/or litter wardens can give an on-the-spot £50 fixed penalty notice for littering. Click here for more information.

Click here for more guidance on smoking