ANTI-SMOKING LEGISLATION GUIDE (THE HEALTH ACT 2006)
When did the ban come into force?
1st July 2007.
What premises are designated smoke-free?
Premises that are open to the public or places of work have become smoke-free. In addition, public transport and work vehicles used by more than one person are subject to the ban.
The legislation only applies to premises so far as they are enclosed or substantially enclosed:
a) Enclosed means having a ceiling or a roof and except for windows, doors or passageways, the premises are wholly enclosed whether permanently or temporarily; and
b) ‘Substantially Enclosed’ means having a ceiling or roof but having an opening in the walls which is less than half the total area of the wall excluding any fittings which can be shut.
Exception:
Premises where someone is living either permanently or temporarily, for example, homes, hotels, prisons, or anywhere else someone may be compelled to live such as a care home.
As for bedrooms in private members’ clubs and hotels, bedrooms can be designated smoking bedrooms as long as they do not ventilate into a non-smoking area of the premises. Such bedrooms must be clearly designated as bedrooms in which smoking is allowed.
What are the Signage requirements?
The requirements are that:
at each entrance to smoke-free premises there shall be displayed in a prominent position at least one no-smoking sign which:
(a) is at least A5 size;
(b) displays the no-smoking symbol; and
(c) contains, in characters that can be easily read by persons using the entrance, the phrase:
"No smoking. It is against the law to smoke in these premises".
(The word premises may be replaced by an appropriate description of the premises for example “in this hotel”)
Exception:
· Where an entrance is to smoke-free premises from other smoke-free premises;
· the entrance is solely for persons going to their place of work;
· where that place is in premises which has another entrance; and
· at that entrance there is displayed in a prominent position a sign which complies with the above;
A no-smoking sign which displays only the no-smoking symbol may be displayed in a prominent position at the entrance instead of a no-smoking sign which complies with the above.
It is the duty of the person/body who controls or is concerned with the management of the smoke-free premises to ensure no smoking signs have been put up in accordance with above. The penalty for this offence is a fine of up to £2,500.
Please see http://www.smokefreeengland.co.uk/content/order-materials.html for free signs that can be ordered.
What are the Penalties for non-compliance?
Any person guilty of smoking in smoke-free premises is liable to a fine of up to £200.
There is also a burden on any person/body who control or is concerned with the management of the smoke-free premises who can be fined up to £2,500 for someone smoking in a smoke-free place unless they can show:
1. that they took reasonable steps to stop the smoking;
2. that they did not know, and could not have been expected to know, of the smoking; or
3. other grounds where it was reasonable for them not to comply with their duties.
This liability extends to companies or other ‘bodies corporate’ where they are the occupier of or concerned with the management of the Premises.
Liability can also extend to the officers of a company or ‘body corporate’ where the smoking occurred as a result of the connivance or neglect by an officer of that company or ‘body corporate’.
What steps should be taken to minimise the risk of liability?
What steps should be taken in order to comply with this legislation:
1. Ensuring the adequate signage is in place, see above;
2. Ensuring that all staff, customers, members or visitors are aware that the premises are smoke-free;
a) Update Staff Manuals;
b) Introduce a reporting system for breaches of the smoke-free policy; and
c) Make announcements to staff regarding the new no-smoking policy of the business, and how that policy is to be carried out;
3. Removing any existing indoor smoking rooms;
4. Removing ashtrays from all smoke-free places;
5. Training staff in the new requirements and how to comply with them; and
6. Introducing a smoke-free policy (see attached).
What has been the impact on the Leisure industry in other EU countries?
Other EU countries have implemented various schemes to accommodate customers who still wish to smoke. In particular, these include installing canopies and gas heaters so as to provide a protected and heated atmosphere for those who wish to smoke, or by having internal courtyards.
For further information please contact:
James Barnatt (Oxford) 01865 268644 email - mailto:james.barnatt@marshallgalpin.com
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