With the rest of the UK set to ban smoking in public places later this year, Eversheds law firm is urging retailers to review smoking policies in the workplace to avoid costly claims.

Smoking in public places will be banned in England from July 1 2007. The ban, which also comes into effect on 2 April 2007 in Wales and on 30 April 2007 in Northern Ireland, is far reaching, extending to all substantially enclosed spaces to which the public have access and all workplaces where there is more than one person employed. It is expected that 99% of workplaces will be covered by the ban, which also extends to work vehicles which are used by more than one person.

The ban should have benefits for employers, such as reductions in sickness levels, an increase in productivity resulting from fewer cigarette breaks, lower risk of fire damage and cleaning costs. In particular, the smoking ban should also have a positive effect on retailers which will benefit from a more hygienic image. As a result, retailers may consider having a strict enforcement of the ban on site, but employers are warned to be careful of the way they enforce the ban, as with all new processes come unfamiliar legal issues.

Paul Cotton, employment lawyer specialist at Eversheds, comments:

“What the case in Scotland has highlighted is that there are still grey areas for businesses when enforcing the smoking ban in the workplace. The argument here concerns different rights for day and night shift workers, therefore it is a case that retailers in particular should monitor.”

“Although the government insists that the approach to enforcement will be non-confrontational and will be considered only when efforts to encourage compliance have failed, anyone caught flouting the ban by smoking in smoke-free premises or vehicles could receive a fixed penalty notice of £50 or a fine of up to £200. A failure to install adequate signage in premises or vehicles could result in a fixed penalty notice of £200 or a fine of up to £1000 and allowing smoking could result in a fine of up to £2500. But for the retailer, there are wider issues than being caught out by the legislation. Smoking is of particular importance to the sector – aside from health and safety implications, the negative impact of smoking on the image of the sector can be immeasurable, far more so than in other sectors.”

The practical implications of the smoking ban will mean the closure of dedicated ‘smoking rooms’ and an end to tolerating ‘illegal’ smoking on an informal basis. Only smoking outside in the open air will be permitted, although employers can provide limited shelter for staff, such as a structure with a roof, provided that more than half of the wall area is open to the elements. How employers choose to implement the ban will therefore be of crucial importance – it may well be preferable to provide a shelter so that employees do not smoke where they might be visible to customers.“Retailers will need to review any current smoking practices in the workplace and consider how and when any changes will be communicated; introducing a smoking policy or amending any existing policy and how changes will be introduced. Doing so in a high-handed manner or through over zealous use of disciplinary procedures may affect morale or encourage litigation. Several employers have already seen the adverse effects of this approach through employment tribunal claims. Disciplinary procedures should also be reviewed to ensure smoking offences are covered and consideration should be given as to whether to offer support and counselling to staff trying to give up smoking.”

If you would like to receive guidance on the smoking legislation, whether in a health & safety/compliance or employment law context, you can contact Eversheds on 0845 497 9797 or www.eversheds.com. Or, for further information on this issue, visit the ‘smoke free’ websites http://www.smokefreeengland.co.uk/ and www.smokingbanwales.co.uk .

Taken from: www.theretailbulletin.com