UK: Total Ban on Smoking at Work in Scotland

On 26 March 2006 the Smoking, Health and Social Care (Scotland) Act 2005 will come into force in Scotland banning smoking in public places. As workplaces are deemed by the Act to be ‘public places’ it is essential that all employers with employees based in Scotland take the necessary steps to ensure compliance with this new legislation.

What does the Act say about workplaces?

The ban on smoking in public places in Scotland does not only extend to premises to which members of the public have access, such as bars, restaurants and hotels. Under the terms of the Act, no-smoking premises include ‘premises which are wholly or substantially enclosed and to which the public or section of the public has access or which are being used wholly or mainly as a place of work’.Vehicles, which one or more people use for work purposes, are also considered to be no-smoking premises.

The Act confers a mandatory requirement that all no-smoking premises must have appropriate warning notices conspicuously displayed on view to any person entering or inside the premises. The notices must be ‘in, on or near the premises so as to be visible to and legible by persons in and persons approaching the premises’ and must state that the premises are no-smoking premises and that it is an offence to smoke there or knowingly permit smoking there.

The Act provides that any individual caught smoking faces a personal fine of £50. However, of more relevance to employers is the fact that the person having management or control of the premises faces a personal fine of £200 if he knowingly permits anyone to smoke. Failure to pay the initial fine may lead to an increased fine on the manager of up to £2500 and a criminal conviction. To avoid liability, it will be incumbent on the manager to ensure that all reasonable precautions have been taken and due diligence exercised to prevent smoking.

Failure to comply with the provisions regarding the display of notices can also make the manager liable to a fine of £200 which can increase to up to £1000 and result in a criminal conviction if not paid.

Employers with employees based in Scotland should take immediate steps to review current practice and policies. The Act does not require employers to have a written no smoking policy. However, any existing policies on smoking should be checked to ensure compliance with the Act.

For those employers who do not have a written policy but instead rely on signs, notices and word of mouth it is important that they ensure that all employees are made aware that smoking at work and in vehicles used for work will no longer be permitted after 26 March 2006.

Of course the best way for an employer to show that it has taken all reasonable precautions to ensure compliance with the Act is to have and implement a clear no smoking policy which explicitly states that smoking is not permitted on the premises as it is against the law. The policy should also state that employees found to be in breach of the policy may face fines under the Act if discovered by Environmental Health Officers but will in any event face disciplinary action by the employer.

Employers may also wish to consider offering counselling and support to those employees who smoke in an attempt to encourage them to stop smoking.Various government run schemes, such as Corporate Health Scotland, are able to offer assistance in this area.

The ban only applies to workplaces and employees working in Scotland at this time. However, it is likely that a similar ban will apply in English workplaces by the Summer of 2007. Therefore employers who have employees in both Scotland and England may find it more cost effective to amend policies and practices now for English based workplaces and employees as well. ©