On 1 July 2007 new legislation came into force, which meant that all enclosed public places and work places had to become smoke free.
Prior to the ban, existing health and safety laws did not expressly prohibit smoking at work although there was a requirement for employers to do what was reasonable and practical to ensure the health, safety and welfare of their staff.
Evidence suggests that smoking was permitted on some construction sites prior to 1 July 2007. Construction sites will be caught by the new legislation, so we consider below the impact of the new legislation.
Key points of the new legislation
A smoking ban is now in force in all “enclosed” or “substantially enclosed” public places and workplaces in England. “Enclosed” premises are easy to spot – they have a ceiling or a roof and are permanently or temporarily fully enclosed (except for doors, windows or passageways). “Substantially enclosed” premises also have a ceiling or a roof, but the aggregate area of openings is less than half the area of the walls. An example of a “substantially enclosed” public place is a bus shelter with a roof and three sides.
Given that a building site is in a constant state of flux there may be occasions when the premises alternate between being “enclosed” and “substantially enclosed” in different phases of the project (i.e. demolition, groundworks, construction, installation of services). In these circumstances there might be an argument that the smoking regulations would not apply at certain points in a project when the workplace is neither “enclosed” nor “substantially enclosed”. Rather than grappling with these issues, it would probably be easier – as a matter of project management - to have a rule that applies across all stages of a project.
It is the duty of any person who controls or is concerned in the management of smoke-free premises to cause a person to stop smoking. It is unclear from the legislation who this duty will apply to on a construction site. In theory there may be many duty holders, for example, the employer; the main contractor; the construction manager; the architect; the landlord or the tenant. Given the lack of clarity on this point, it may be sensible to invite the local authority to the site in order to agree responsibility for enforcement of the smoke free rules, as part of the overall management of health and safety on the site.
A failure to comply with the duty is an offence unless the duty holder can show he took reasonable steps to cause the person in question to stop smoking; or he can show that he didn’t know someone was smoking; or the person can demonstrate that on other grounds it was reasonable for him not to comply with the duty. The legislation does not deal with when it would be “reasonable” not to comply (for example whether it would be reasonable for a contractor to allow a chain smoking employee on the 36th floor of a tower on a construction site to smoke in order to maintain productivity). The emphasis in the legislation appears to be on absolute compliance, therefore the chances of this scenario being reasonable are slim.
There is no legal obligation to provide facilities for smokers. Smoking rooms had to be closed by 1 July 2007, and if employers want to provide a smoking shelter for employees then they need to ensure that this is not caught by the rules for “enclosed” or “substantially enclosed” places.
In smoke free premises at least one sign must be displayed in a prominent position at the entrance and clearly contain the words: “No Smoking. It is against the law to smoke in these premises”.
Enclosed vehicles and enclosed parts of vehicles must be smoke free if they are used in the course of paid work by more than one person - even if those persons use the vehicle at different times, or only intermittently. Company pool cars; vans; and the cabs of JCBs, ready mix concrete trucks, and tower cranes will all fall within the rules and must remain smoke free. Responsibility will rest with the driver and any person with management responsibilities for the vehicle.
Penalties
Failure to comply with the legislation is a criminal offence. Fines for each offence are set out below:
• Failing to prevent smoking in a smoke-free place: maximum fine of £2,500.
• Failing to display no smoking signs: maximum fine of £1,000. Or there is a fixed penalty notice of £200 (reduced to £150 if paid within 15 days).
• Smoking in smoke free premises or work vehicles: maximum fine of £200. Or there is a fixed penalty notice of £50 (reduced to £30 if paid within 15 days).
Best practice
In order to comply with the legislation, act on the basis that rules apply to all areas on a building site that will at any time be “enclosed” or “substantially enclosed”. Contractors/employers may wish to consider providing a smoking shelter on building sites, but this is not obligatory and any structure must take account of the definition of “substantially enclosed” premises. All duty holders should take enough action to show that they have taken “reasonable steps” to comply with the legislation.
