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Smoking is banned in all workplaces in England, including truck
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cabs, from next week. But what if your employees ignore the new regs? Adam Hill reports.
From 1 July, as part of a blanket ban on lighting up in businesses, there will be no smoking in England's haulage firms. Workplaces in Wales and Scotland are already smoke-free.Yourcompanyshould have received a guidance pack from the Department of Health. If you haven't, go to www.smokefreccngliand. co.uk for more information.
Assuming people know things are about to change, what are some of the key issues arising from the new legislation? First off, from next month,if employers find any of their employees ignoring the ban they need to act, Managers of smoke-free premises who fail to stop people smoking on them will need to have taken reasonable steps to prevent them in the first place.
In the real world, if no one is complaining about it, employers will be tempted to let smokers get away with it. But this could be a risky strategy. David Wright, a solicitor in the health, safety and environment team at law firm Kennedys, says:"lt should be a disciplinary offence. Turning a blind eye is a dangerous thing to do because the employer is risking [committing] a criminal offence."
One defence for haulage managers might be that they don't know or cannot reasonably be expected to know staff are smoking, although it's better to make sure your policies and procedures are in place and well communicated to the workforce.
A persistent offender who continues to smoke in his or her cab,or in the workshop toilet. might seem to present a challenge but normal disciplinary procedures should cope. with this. When it comes to illegal drug use, employers need to be careful about the way they deal with staff and may need to make some form of rehabilitation provision. But a heavy smoker is unlikely to be able to claim nicotine addiction as a defence. "Someone with a heavy smoking habit might get short shrift from an employment tribunal in that case," Wright says.
Blanket ban
But what if most litters in your workshop are smokers and the non-smokers working there don't object? The law still applies: there are lots of people in the workplace who don't like smoking but would probably rather not make a fuss, which is why the law is framed as a blanket ban rather than with opt-outs.
Likewise truck cabs: the 'smoke-free' ruling affects them if the truck is used by more than one person. but does it apply if the only other'persons' using the cab are yard shunters,fitters or occasional passengers? 'Yes' would seem to be the answer: the Smoke-free (Exemptions. and Vehicles) Regulations 2007 state that the vehicle must be smoke-free if used in the course of paid work by more than one person (even if those persons use the vehicle at different times, or only intermittently)".
Employers are not legally obliged to help employees stop smoking but the National Institute for Health and Clinical Excellence (NICE), which is providing guidance for employers, says those companies that do provide cessation support could reduce the risk of non-compliance with the law, as well as benefiting from reduced sickness absence and increased productivity. NICE recommends employers provide information on local stopsmoking services and allow people who smoke to attend these services during working hours without loss of pay. Firms might even want to provide such services in the workplace.
Although smoking outdoors at work is allowed, there is no requirement for anemployer to provide an outside shelter for those who want to light up — although it is likely you may not want them all gathering round the entrance to your premises. If you have an existing outside shelter, it might be worth checking with your local Environmental Health Department. which is responsible for enforcement, that the shelter does not breach the law. r USEFUL CONTACTS
For signage, sample no-smoking policies and advice: www.smoketreeengland.co.uk NICE's guidance on smoking cessation in the workplace: hftp://guidance.nice.org.uk/PHI5