Public and Commercial Services Union

In 2007 legal restrictions on smoking in workplaces and public places were introduced across England, Wales and Northern Ireland. Scotland already had legislation prohibiting smoking in the workplace.

This guidance explains what the regulations say, what they mean to workers and employers, and what steps safety representatives should take to ensure suitable smoking restrictions are in place.

What the law requires

The smoke-free legislations covers not only tobacco in cigarettes, pipes and cigars but also herbal tobacco. These are all prohibited when lit, even if the person is not smoking at the time. So wandering through the workplace with a lit cigarette would be an offence.

Smoking is not permitted in any workplaces or public places which are “enclosed” or “substantially enclosed” This means premises that have a ceiling or walls at least half the way around, including doors and windows. The regulations also cover work vehicles, although there are exemptions for vehicles that are only ever used by one person with no passengers. The restrictions do not apply to an employee’s own vehicle unless it is being used for hire or as a work vehicle by more than one person.

Employers are required to display “no smoking” signs at all entrances to premises and also in vehicles or face a fine.  It is the responsibility of the employer or operator to ensure the signs are there.

It is an offence to smoke in a smoke-free place. It is als an offence to fail to prevent smoking in a smoke-free place. The latter offence generally applies to employers or occupiers of premises.  Reps will need to ensure that members are not put at risk by being expected to enforse no smoking rules with members of the public etc.

There are some exemptions under the new regulations. These mainly relate to situations where a person’s workplace is also their, or someone else’s, home. This includes residential homes, long-term residential mental health units, prisons, offshore platforms and hospices.

Although smoking will be allowed in either a bedroom or a designated smoking room, there are strict conditions. The exemptions relate to residents and their guests only and employees will not be able to smoke on the premises (except off-shore platforms).

The regulations allow for smoking in designated hotel bedrooms and do not cover employees visiting people in their own homes. There are also exemptions for theatre and film performances where smoking is necessary for “artistic” reasons, some research and testing facilities and specialist tobacconists.

Ensuring a good non-smoking policy

Many employers  took the opportunity of the change in the law to review other issues such as smoking outside or breaks. This has caused some tensions and reps need to make sure that smoking (or no smoking) policies are in place and reviewed.

Negotiated smoking policies can help employers to deal with this controversial and sensitive issue in a practical and effective way. Smoking policies should not victimise smokers but seek to protect employees from exposure to environmental tobacco smoke.

The main aims of a smoke-free policy are to:

• Protect staff from the harmful effects of second-hand tobacco smoke.
• Ensure that all parties including employers, smokers and non-smokers have a clear understanding of their rights and responsibilities and prevent problems arising;
• Ensure that the workplace complies with the law.

A negotiated policy involving union representatives is more likely to be practical and acceptable to the workforce.

Negotiating a smoking policy will vary depending on the workplace. The overall aim should be to eliminate employee exposure to environmental tobacco smoke, and at the same time comply with the legislation. Policies should not be used to stigmatise smokers or discriminate against them.

What should be included in a smoke-free policy?

A comprehensive smoke-free policy will cover some or all of the following:

• The rights of non-smokers to breathe air that is free from tobacco smoke;
• Compliance with all legislation relating to smoking in the workplace;
• What time is allowed for smoking breaks for indoor workers who have to leave the workplace to smoke;
• The support that is to be provided by the employer for smokers who wish to stop smoking;
• What happens to employees and visitors who do not comply with it;
• Procedures for monitoring the effectiveness of the policy and for reviewing it;
• Procedures for resolving complaints and disputes.

The following steps will be useful when negotiating a smoke-free policy at work:

The commitment of the employer to health promotion

The smoke-free policy should not be an isolated action but part of a comprehensive approach to promoting health and preventing risks at work. Specific measures on smoking should be part of the employer's overall plan for health and well-being at work. The smoke-free policy should seek to protect or promote the health of both the smoker and the non-smoker. However while an employer may reasonably wish to support employees by helping them give up they should also accept that the decision whether to smoke outside of work is for the individual.

Set up a working group

The group should be responsible for co-ordinating the various phases of the programme – development, implementation and monitoring. The working group should be made up of trade union representatives, smokers and non-smokers, health and safety and human resources staff and the senior management team.

Inform the workforce

Rather than just notify the workforce that the smoking ban is being introduced to comply with the law, it is important that everyone in the workplace is informed about the health hazards associated with passive smoking. This can be done via health promotion programmes, displaying and distributing educational literature, articles in in-house publications or via an intranet.

Consult the workforce

 It is important to find out employees' opinions on the policies to be implemented by the employer. A questionnaire could be drawn up and distributed by union representatives to find out:

• The number of smokers and ex-smokers
• The proportion of smokers who wish to give up smoking
• Attitudes to smoking in the organisation 
• Opinions on issues such as outside smoking and breaks

Other ways of gauging employees' views are meetings, interviews or group discussions. These should be run by the union, rather than by management, so that people feel freer to express their views openly and honestly.

Working towards a policy

With the information from the consultation process a policy can start to be formulated. The draft policy should:

• Comply with the law
• Protect all non-smokers in the workplace
• Describe how disagreements and breaches of the policy will be dealt with 
• Describe what help is available for smokers
• Have a clear timetable for implementation with a phase-in period
• Name the person responsible for monitoring and receiving feedback

Provision for smokers

Research shows that smoke-free workplaces help smokers to give up or reduce the amount they smoke, however some people will still want to smoke during working hours and many will find it very difficult to cut down or stop. Each organisation will deal with this issue differently depending on the culture and the nature of the work. However no smoking can take place at all inside an enclosed building, so any permitted smoking area will have to be outside. Suitable provision should be made for ash and cigarette ends.

If smoking is permitted outside in designated areas, the working party will need to consider whether to specify how often and for how long smokers may take breaks. There are also issues about where such smoking is permitted to take place – it must be located so that smoke is not going to drift into the building through open windows etc. and smoking is not concentrated in an area where non-smokers will still be exposed to it – such as clustered around doorways and entrances. Access for disabled smokers also need to be considered.

It is necessary that smokers are not exposed to increased risks of assault or verbal abuse by having to leave their workplace to smoke. Equally, it is good practice to provide some protection from inclement weather – not least because this improves the chances of compliance with the policy and lessens the risk that smokers might try to find areas under cover to smoke that could increase the fire risk associated with discarded smoking materials.

Some employers have attempted to use smoking bans as an excuse for banning outside workers from smoking while on duty. There is no legal requirement to do this and outside smokers are only harming their own health, not that of others.

If employers do propose this then safety representatives should consider this carefully, as it is not an occupational health and safety issue but a health promotion issue, or, if the outside worker can be identified with the employer through a uniform or other means, then simply one of image for the employer.

If representatives from all areas and all levels of the organisation are involved in the working group it is more likely that the most appropriate policy will be drawn up and conflict will be reduced.

Support for smokers who want to give up

 Helping smokers to give up if they wish is an essential element of a successful smoking policy. Employers may wish to work with local NHS Stop Smoking Services on this (contactable through the local NHS Primary Care Trust) or to contact their Occupational Health provider for advice.

Ideally this support should be offered both in the period leading up to the implementation of a smoking ban, as well as immediately after. There are various ways of doing this:

• Provide advice on giving up smoking from a doctor or health professional
• Developing programmes for giving up smoking which could consist of group meetings run by professionals
• Supplying free or subsidised nicotine replacement therapy such as gum or patches
• Distribute self-help guides for giving up smoking
• Multi-component programmes including all of the above and tailored to the individual

Implementing the policy

Once the policy is finalised it needs to be communicated to the workforce and a date set for implementation. Good practice is to provide at least a 12-week gap between the policy being finalised and it coming into operation. At this stage the necessary adjustments should be made such as publicising the policy, ordering signs and organising support for smokers. Copies of the policy should be displayed in key areas around the workplace. All new employees should be given a copy of the policy.

Evaluation and monitoring

The policy must be monitored and evaluated jointly by unions and management to ensure that it is working effectively. Any changes should be made in consultation with the workforce and any complaints or problems should be handled promptly and fairly. The following areas may be included in an evaluation:

• Have there been any reports of non-compliance?
• Are the signs clear and do they cover all areas including public areas? 
• Are new staff told about the policy at induction? 
• Are existing staff reminded about assistance available to help them stop smoking? 
• Have there been problems over the use of breaks by smokers?
• If outside areas are available for smoking, are they being used and is litter removed regularly?

Dealing with exemptions

Where your employer can claim an exemption from parts of the smoke-free restrictions in the regulations, then it is important that the union is involved in discussions on how the exemptions will be introduced.

In prisons, mental health units, oil and gas platforms, hospices and care homes, while smoking by residents will be permitted, this is 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 exemption 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.

Visiting clients in their home

Workers visiting clients in their home are not directly covered by the provisions of the smoke-free legislation. However union representatives will wish to ensure that employees are protected when visiting clients in their homes. Obviously staff should not be able to smoke while with a client.

Safety representatives and negotiators 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 passive smoking. 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.

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.

Further information

For more information on issues covered in this guidance contact the Equality, Health & Safety Department at PCS.