Smoking regulations

A smoking gun

A look at the new smoking regulations

On 1 July 2007, the Smoke-free (Exemptions & Vehicles) Regulations came into effect in England, making enclosed public spaces and workplaces smoke-free.

Tony Lawton, a personal injury partner with Thompsons, provides an overview of the main provisions of the new law.

Passive smoking

Even before the introduction of the legislation, employers already had a duty of care under the common law to protect their staff so far as is reasonable.

Some employees had used this obligation to bring claims against their employers arguing that they were exposing them to danger, despite being aware of the risks of passive smoking. Many of these, particularly in the food, drinks and entertainment industry, habitually exposed their staff to the dangers of cigarette smoke on a large scale.

Thompsons successfully pursued a number of claims on this basis for union members who were able to prove that they had suffered respiratory illnesses as a result of being exposed to smoke at work. As the dangers of passive smoking have been known for several years, it is just about impossible for a reasonable employer to argue that they were unaware of the dangers.

We have only succeeded, however, where we were able to show that the employer could – and should – have taken steps to significantly reduce the dangers from cigarette smoke. Success is always subject to proving the difficult issue that the illness was caused by smoking at work, whether based on negligence or a breach of the new regulations.

Main provisions of the new regulations

The new regulations go further than the common law and, for the first time, impose a statutory duty on employers. As a result, if they breach the legislation, they may not only face a criminal prosecution but also a civil claim for compensation alleging that they were in breach of their statutory duty. That is in addition to allegations of negligence in common law.

The strength of the new legislation is that, subject to certain exemptions (see below), employers are under a strict liability to abide by them. That just means that the employer is automatically to blame if the employee can show a breach of the law.

The regulations state that premises must be smoke-free if they are enclosed or substantially enclosed and:

• are open to the public
• used as a place of work by more than one person
• a place where members of the public might attend for the purpose of receiving goods or services from people working there

“Work”, in this context, includes voluntary work.

Exemptions in the law

Despite the legislation, many workers will continue to be exposed lawfully to cigarette smoke in the course of their work. This is because of the exemptions set out in the regulations.

These allow hotels and boarding houses to have specified bedrooms that are not smoke-free. And designated bedrooms and smoking rooms for adults in care homes, hospices and prisons may also still not be smoke-free. Likewise, designated rooms for adults in accommodation in mental health units.

Those working in the tobacco industry will still not have any statutory protection against cigarette smoke in some places. For example, specialist tobacconists are exempt, as are designated smoking rooms in research and testing facilities where the research relates to the emissions from tobacco or other smoking products. Designated rooms in an offshore installation are also exempted.

The most interesting exemption is that of “performers”. The legislation says that anyone participating as a performer in a performance is not to be prevented from smoking if “the artistic integrity of a performance makes it appropriate for them to smoke”.

A “performance” is defined as including for example “the performance of a play, or a performance given in connection with the making of a film or television programme”. Non-smoking performers on stage or on set and backstage staff may therefore continue to have concerns if they are exposed to cigarette smoke without statutory protection. It will be interesting to see how the courts interpret this exemption.

Exemption, not absolution

Despite the exemptions, employers cannot simply absolve themselves of any responsibility for the health of their employees from inhaling cigarette smoke, just because a part of the workplace falls outside the smoke-free protection. Although the employer will not be open to prosecution where the part of the workplace is exempt, they still may have a common law liability for negligence if they have not taken reasonable steps to protect their staff.

So concerned employees should:

• Make sure their employers are aware of their concerns. Put them in writing, or ensure they are recorded in minutes of safety meetings.
• Explore ways with their employer to reduce or contain the smoking, or find ways of providing better means of extraction.
• Make sure that their employer knows that, although they may not be in breach of the legislation, that does not absolve them from their civil responsibility as they still have a duty of care.

Still not easy to sue

A word of caution. Those exposed to cigarette smoke at work should be aware of some of the difficulties involved in pursuing claims for smoking, whether based on breach of the regulations or negligence.

While Thompsons may be able to show that there had been a breach or that the employer was negligent, we still need to prove that they caused the illness in order to succeed. That is not always easy.

People are exposed to cigarette smoke in many places, not just at work. Proving that it was the smoke at their workplace that either caused the illness or materially contributed to it can be difficult, and would be a matter for expert evidence. That requires a medical expert who is prepared to stand up in court and say that, on a balance of probabilities, the illness was caused by the cigarette smoke at work. They then have to resist cross-examination by the employer who may well have an expert medical witness who disputes the claim.

While the legislation will make is easier to prove that an employer is liable, it will not make it easier to prove that the illness is work-related.

A final thought

However, it should be remembered that the main purpose of the legislation is not to make it easier for employees to litigate against their employers, but to provide an effective preventive measure, which will remove the risks of passive smoking at work. This should then reduce the risk of illness to a large section of the workforce. Progress indeed.