Smoking in enclosed or substantially enclosed public places and workplaces in England has been banned since 1 July 2007. It is potentially a criminal offence for employers to fail to stop anyone from smoking on their premises or to fail to make sure that no smoking signs are displayed.
The ban on smoking applies to all substances which a person can smoke, including manufactured and hand-rolled cigarettes, pipes (including water pipes such as shisha), cigars and herbal cigarettes.
Electronic cigarettes (e-cigarettes) are designed to simulate the act of smoking by releasing nicotine. They do not contain tobacco or a combustible material that is actually smoked but they give off a vaporised mist. As a result, they are unlikely to be caught by the ban.
Smoking At Work
Smoking breaks
Employees wishing to smoke (regular or e-cigarettes) during the working day should do so outside their office buildings, and in any shelters or outside areas designated by their employer. Employers are increasingly imposing limits on the amount of time or number of breaks employees are allowed to take for the purposes of smoking in order to control productivity and to prevent resentment arising on the part of non-smoking employees.
Employers are not required to give extra “smoking breaks” to employees who wish to smoke, in excess of their usual permitted breaks. Neither are employers with suitable outdoor spaces obliged to permit smoking on the premises at all. Employers are in theory free to impose a complete ban on smoking on site, whether inside or outside. Some employers also prohibit employees from smoking on the pavement or steps outside the workplace, which can create mess and an unprofessional appearance.
Smoking shelters
There is no requirement for outdoor smoking shelters to be provided for employees or members of the public. However, if an employer decides to install shelters it must comply with the 50 per cent rule to ensure that the shelter is not “substantially enclosed” (or the shelter itself will be caught by the smoke-free legislation).
E-Cigarettes & Vaporisers
E-smoking has seen a significant surge in popularity and has led to political debate about whether to ban the sale of e-cigarettes to under 18s. In addition, many employers have seen either requests to accommodate e-smoking at work or request from non-smokers for it to be banned.
As previously stated, e-cigarettes are not covered by the smoking ban and are unlikely to be covered by existing smoking policies. Employers will therefore have to decide the extent they want to permit e-smoking in the workplace and whether this should be treated the same as regular smoking.
Employers are within their rights to ban e-smoking; if they wish to do so they will need a clear policy which applies to all staff. Alternatively, employers may prefer to be more supportive of e-smoking as a means of quitting smoking than they are to regular smoking; again this will need to be set out within a clear policy. If employers wish to provide an area for smoking e-cigarettes as opposed to regular smoking, they will not have to comply with the same requirements for any area or shelter.
Laura Kearsley is an Employment Law specialist. For more employment law advice or to comment on this article contact us to speak to a member of our employment law team.