Legal dangers of smoking in the workplace

Published on 20/05/2004 01:00

MANAGERS in hotels, pubs and clubs across the country had a surprise start to the year when they received a letter from anti-smoking charity Ash.

The letter warned employers they are at risk of being sued by employees whose health is damaged as a result of passive smoking in the workplace.

So, what do we currently know about the dangers of second-hand smoke? How can employers stay on the right side of the law? And how is the move towards a blanket ban affecting UK business?

Unlike Ireland, Britain has no legislation preventing smoking in the workplace. The Health and Safety Commission recommended in 2000 that the Government adopt an Approved Code of Practice on passive smoking.

However, the Government has, instead, focused on voluntary bans and encouraging proper ventilation and segregated smoking areas.

In Scotland, MSP Stewart Maxwell has introduced a private member’s bill which aims to ban smoking in "regulated areas", such as where food is being consumed or will be consumed within the next five days.

It is not yet clear whether the bill will be supported by the Scottish Executive. To date, formal restriction in Scotland has been avoided in favour of a programme called A Breath of Fresh Air for Scotland which encourages smokers to quit.

A survey by the Office for National Statistics suggests there is popular support for restrictions on smoking, with 86 per cent backing tighter controls on smoking at work. This increases to 88 per cent for restaurants, but falls to 54 per cent for pubs.

According to Ash, around 1200 workers die each year as a direct result of breathing other people’s smoke at work. Passive smokers stand a 25 per cent greater risk of heart disease than those not exposed, despite inhaling only one per cent as much as an active smoker.

The figures make uncomfortable reading. But, in the absence of a total ban, do employees currently have the right to take action against their employers for failing to provide a smoke-free environment?

Employers are obliged to ensure a safe working environment. Therefore, with the ill-effects of breathing tobacco smoke having been proven and acknowledged, it could be argued employers have a duty to prevent smoke in the workplace.

The compensation claims by workers whose health has been badly damaged by these substances have been widely reported.

Some restaurants, such as Pizza Hut, have already introduced a complete ban. Ash points to the benefits of such a ban for employers, such as increased productivity - by stopping smoking breaks - and a reduction in insurance premiums and redecoration costs.

It also argues that ventilation systems do not protect employees enough and that segregated smoking areas in bars are not effective at all, as workers will have to operate in them. One option could be to allow employees to refuse to work in such areas.

While employers may have a duty to take reasonable and practical measures to reduce employees’ exposure to second-hand smoke, it is not clear whether this necessitates a complete smoking ban.

Ash advises a good smoking policy, which at least tries to reduce the risk to employees of passive smoking, will help employers reduce the risks of future litigation. For the moment, the best place to start would be proper consultation with employees.

In the meantime, it remains to be seen whether any employees will test the water by bringing a claim. Ash has retained copies of the letters it sent, indicating they will be available for use as evidence in any subsequent court action by employees who believe they have been harmed by passive smoking in the workplace.

According to Ash, employers "have now been warned". The key is to ensure that workplace policies are updated by employers in a way that reduces the risk of a claim.

• Roy Drummond is a solicitor specialising in employment law with Maclay Murray & Spens.