Smoking in enclosed or substantially enclosed public places and work places in England has been prohibited since 1 July 2007 under the Health Act 2006 and employers that ignore this legislation risk the danger of fines or possible criminal charges.
Smoking is banned in enclosed spaces, defined as a space which has a ceiling or roof and which, except for doors, windows and passageways, is wholly enclosed (either temporarily or permanently).
Smoking is also banned in substantially enclosed spaces which are premises with a ceiling or roof and where there is an opening or openings in the wall which is less than half their perimeter. This includes temporary buildings such as tents and marquees.
Establishments covered by the ban include offices, churches, factories, shops, pubs, bar, restaurants, private members clubs and also public transport and work vehicles used by more than one employee, regardless of whether they are in the vehicle at the same time.
As far as homeworkers are concerned, if more than one person uses any part of a private dwelling as a place of work then it must also be smoke free. Vehicles used primarily for private purposes are excluded from the ban, but if a vehicle is used by any other passenger or driver for work purposes, then smoking in the vehicle is prohibited and the driver of the vehicle has a responsibility to stop anyone from smoking within the vehicle.
Employers must also display a no-smoking sign in a prominent position in the entrance to all smoke free premises and vehicles, signs must be of a prescribed size and display the international no smoking symbol and state 'no smoking. It is against the law to smoke in these premises'. An individual found guilty of smoking in smoke free premises or a smoke free vehicle can be liable to a fixed penalty of £50 or a fine of up to £200. An employer that fails to display no smoking signs could be liable to a fixed penalty of up to £200 or a fine not exceeding £1000. Failing to prevent smoking in smoke free premises or smoke free vehicle carries a fine of up to £2500.
The use of electronic cigarettes or vaping devices falls outside the scope of the smoke free legisation contained in the Health Act 2006. Allowing the use of e-cigarettes/vaping in the workplace is therefore at the discretion of the employer. In deciding whether to allow or prohibit the use of such products, and employer may wish to consider the following:
- E-cigarettes are often used by people as part of a plan to stop smoking, so employers may want to support their use if this is the case;
- The vapour from E-cigarettes might be annoying to some employees and may make non-users uncomfortable if they are used in their proximity;
- The potential health risk posed to others through passive consumption of e-cigarette vapour (like passive smoking) is unclear. Any potential risk is likely to very small indeed when compared to the risk posed by passive smoking from conventional cigarettes or other smoking materials;
- Some E-cigarettes look very similar to real cigarettes so employees or customers may think that real cigarettes are being smoked in the workplace. If smoking E-cigarettes is allowed at work, line managers should be aware of who may be smoking them within their teams. It is best to make it a rule that line management approval is needed to smoke E-cigarettes in the workplace;
- It should be made clear that this is a significant difference between the use of e-cigarette/vaping devices and conventional smoking. If smoking is only allowed in designated areas users of e-cigarette should be provided with a separate are of their own to use such devices; they should not be required to share an area with conventional smokers;
- Any relevant Trade Union or Employee Representatives should be consulted as aprt of the process fro formulating and implementing policies relating to the use of e-cigarette/vaping devices.