The law to make virtually all workplaces and public places smokefree will come into effect in Summer 2007.
This guide is to help employees unhappy about the existing smokefree policy in their workplace or about the absence of one, between now and the implementation date of the new legislation.
How to implement a smokefree policy in the workplace
- When trying to introduce a smokefree policy into the workplace it is important to try to avoid conflict and legal threats if possible. Raise your concerns about exposure to secondhand smoke with your Human Resources Department or your immediate boss (if you do not have a Human Resources Department). The Health Act, which will make virtually all workplaces smokefree by law, will come into effect by Summer 2007. So the smokefree workplace is already inevitable. Going smokefree early will provide protection from secondhand smoke and help make the transition to smokefree easy and straightforward.
- Point out to your employer that the medical evidence and advice on secondhand smoke has been confirmed by the Government’s own Scientific Committee on Tobacco and Health (SCOTH) November 2004 and was used as evidence in the campaign for comprehensive smokefree legislation.
It states that “ knowledge of the hazardous nature of SHS [secondhand smoke] has consolidated over the last five years, and this evidence strengthens earlier estimates of the size of the health risks. This is a controllable and preventable form of indoor air pollution. It is evident that no infant, child or adult should be exposed to SHS”.
- Talk to your colleagues to see if anyone else thinks there is a problem with secondhand smoke in your workplace. If other colleagues agree, make a joint approach to your employer. Responsible employers should already have a smokefree policy in place or be planning to go smokefree before 2007. Smoking rooms or smoking in shared restrooms and canteens will not be permitted under the new legislation. Your request to go completely smokefree may provide the incentive your employer needs to act. The Smokefree Action website has information on why an organisation should go smokefree early, frequently asked questions and a model smokefree policy.
- Some employers may decide to wait for commencement date before going smokefree. There is overwhelming evidence to support the need for comprehensive smokefree legislation and continuing to expose workers to secondhand smoke may leave that employer open to legal action. Legal advice available to ASH strongly indicates that, under the Health and Safety at Work Act 1974, employers would be expected by the courts to know of the health effects of exposing employees to secondhand smoke.
If all else fails……….
- Keep a diary of the times and places that you have felt ill or uncomfortable as a result of other peoples’ tobacco smoke. This will help make your case clearer to your employer. Furthermore, should you have to resort to legal action an industrial tribunal will favourably view diary evidence of specific events. A diary will help you avoid having to make vague statements such as ‘it made me ill over time’.
- After the initial contact with your employer, ensure that any communication is conducted in writing. Minutes should be kept at any meetings and keep a copy of all letters, memos and minutes.
- Consult your union representative. If you’re not a member then you might consider joining one. If there is no union present in the workplace you can still join a union as an individual. Many unions are very supportive of members suffering from the effects of passive smoking; a number have even supported legal action by members.
- Find out if your workplace already has a smoking policy that’s being ignored – you might be surprised how often this happens. If this is the case it may constitute a breach of your Contract of Employment or Terms & Conditions and should be drawn to the attention of your employer. Your employer also has an implied contractual obligation to provide conditions fit for you to work in.
- If tobacco smoke is making you feel ill, make an appointment to see your doctor. Find out if s/he would be prepared to write to your employer outlining how passive smoking is affecting your health. This is particularly important if you are pregnant, suffer from asthma or have any breathing or heart problems.
- If you feel you have exhausted all other options, then you might want to consider consulting a solicitor, preferably one with experience of employment law (most unions offer this service free to members) to obtain a legal opinion as to whether your Contract of Employment or Terms & Conditions are being contravened. Many good solicitors will provide a short consultation, free of charge, to find out if your case is worth pursuing. ASH and Thompsons Solicitors (the UK ’s largest personal injury and trade union law firm) have published a leaflet called ‘Secondhand Smoker?’ with frequently asked questions relating to secondhand smoke in the workplace.
- If you believe your health is suffering as a result of exposure to secondhand smoke, you can seek legal advice concerning a claim for damages for personal injuries and consequential losses. You have three years from the date on which you first realise that you are suffering from an illness/injury within which to commence court proceedings, failing this it is most unlikely that a court would allow you to take such action. Keep copies of any documents provided by your employers giving guidance on the issue. Ask your employer's Health & Safety Officer to carry out a risk assessment if none has been conducted already. Seek medical advice from your GP/treating specialist as medical records are likely to be open to inspection in any legal case. Make sure you complete accident/injury report forms/book in work and if you are absent from work due to illness relating to secondhand smoke, record reasons for absence accurately.
Legal Advice
- New legislation on smoking in the workplace.
Under the new Health Act 2006, virtually all workplaces and enclosed public places will be smokefree from Summer 2007. If your workplace comes under the new legislation, then smoking in the workplace will not be allowed anywhere inside the building. There will be a fine for smokers who ignore the new legislation and employers who do not enforce it.
- Health and Safety and Work Act (1974)
Much of the law regarding safety in the work place can be found in this Health & Safety at Work Act. If you have a respiratory condition or heart condition and are being forced to work in a smoky atmosphere, which may make that condition worse, your employer must take action to deal with the risk. Health and Safety Inspectors can take enforcement action if necessary in these circumstances, but ultimately it would be for the courts to decide in a particular case whether the risk to health was significant.
- The Management of Health and Safety at Work Regulations (1999)
European Directive 92/85/EEC, health and safety at work of pregnant workers and workers who have recently given birth or are breastfeeding, is implemented in the UK by Statutory Instrument 1994 No. 2865
(The Management of Health and Safety at Work (Amendment) Regulations 1994)
Any specific risks to females of childbearing age who could become pregnant and any risks to new and expectant mothers must be assessed by the employer. It is important if you are pregnant, have given birth in the previous six months or are breastfeeding to inform your employer. The notification should be given in writing, as early as possible. When your employer receives written notification from you that you are pregnant, have given birth within the previous six months or are breastfeeding, your employer must by law conduct a specific risk assessment. The assessment must take into account any advice provided by your GP or Midwife on your health. If risks are identified then as a new or expectant mother you are entitled to a change in working conditions, be offered suitable alternative work, or if that's not possible suspended from work on full paid leave for as long as necessary. ASH factsheet 7 has more information on why secondhand smoke is a health hazard for pregnant and nursing mothers.
Under the Sex Discrimination Act 1975, if an employer fails to protect the health and safety of their pregnant workers, it is automatically considered sex discrimination.
- Employment Rights Act (1996)
If exposureto secondhand smoke has caused you distress or forced you to leave your job, then you may be able to cite your employer as being in breach of the Employment Rights Act 1996.The contract of employment which regulates the relationship between employer and employee is subject to general principles of statute law. In addition to expressed terms within the contract there will also be ‘implied terms’ such as the Health and Safety at Work Act 1974. This includes the common law obligation placed on employers to take care of employees. This obliges employers to take all reasonable steps to protect employees as soon as they are aware of a risk, or could be expected to be aware of a risk.
- Workplace (Health, Safety and Welfare) Regulations 1992
European Directive 89/391/EEC, is implemented in the UK by Statutory Instrument 1992 No. 2051 (The Management of Health and Safety at Work Regulations 1992)
In rest rooms appropriate measures must be introduced for the protection of non-smokers against discomfort caused by tobacco smoke. If your rest room is shared between smokers and non smokers it should be brought to the attention of your Human Resources Dept or your immediate boss.
Secondhand smoke kills. Everyone should have the right to work in safe, smokefree environment.
Useful websites
www.smokefreeaction.org
www.ash.org.uk
Specifically for pregnant women at work:
http://www.hse.gov.uk/mothers/
Useful telephone numbers:
Health and Safety Executives Information line: 0845 345 0055
TUC Know Your Rights line: 0870 600 4882
Thompsons Solicitors free phone: 0800 587 1270
National Clean Air Awards: 0871 220 5491 00871
ASH: 020 7739 5902
