Scottish Smoking Ban Communiqué

On 26 March 2006 smoking will be banned in certain wholly or substantially enclosed public places in Scotland.

This communiqué sets out the main issues employers will have to tackle in the lead up to the ban taking effect.

At 6am on 26 March 2006, the ban on smoking in certain wholly or substantially enclosed public places in Scotland will take effect.

Why is the ban being introduced?

The ban is being introduced in order to protect people from the harmful effects of passive smoking, such as, increased risks of lung cancer, heart disease, and respiratory illness.

Substantial evidence has shown that while ventilation can eradicate the smell and visibility of smoke, it cannot fully remove the toxic carcinogens which are emitted. A ban has therefore been deemed necessary.

Where will the ban apply?

The ban applies to certain public places which are "wholly or substantially enclosed". This means any area with a ceiling or roof with walls on more than 50% of its perimeter.

When determining whether an area is enclosed, you can ignore doors, windows and passageways. However, this still means that the vast majority of areas currently designated as "smoking rooms" will fall foul of the new rules.

Certain vehicles are also affected by the ban, including: light and heavy goods vehicles, and public transport such as taxis, buses, trains and ferries. However, cars - including company cars - are exempt from the ban.

Certain premises will be exempt from the ban. For example, specific premises in the care sector can make provision for "designated rooms" to be used for smoking so that non-smoking patients, visitors and staff are not exposed to second-hand smoke.

It will also be lawful to have designated smoking rooms in offshore installations, certain hotels, and psychiatric hospitals (among others).

What do I need to do to comply?

Every business and organisation in Scotland will be required to take all "reasonable precautions" to ensure employees, customers and other visitors do not smoke on their premises.

What will this mean in practice?

Develop & implement policies
You should develop and implement a smoke-free policy or policies to deal with infringements by employees, customers, visitors etc.

The policies should identify which members of management and staff will be responsible for implementation and should state the procedures to be followed in the event of non-compliance. In the case of employees, disciplinary action will be the most likely consequence.

You should also ensure that your policies expressly set out the rules which apply to vehicles.
Re-think smoking areas
If you currently provide "smoking rooms" for staff, you will need to consider what alternative outdoor arrangements can be put in place.

This may involve the need to take legal and planning advice to ensure your proposals comply with the law.

If you do not wish to provide some sort of shelter, you may still wish to consider providing external bins in order to reduce litter.
Display signage
You will be required to display "No Smoking" signs in any premises or vehicles affected by the ban. These should be visible to those both in or approaching the premises/vehicle.

There are certain minimum requirements for such signage relating to both size and wording. It must also contain the international "No Smoking" symbol and the name of the person to whom a complaint should be made if someone is contravening the ban.
Ensure the safety of staff
If someone is smoking in a no-smoking area, they will need to be informed that they are committing an offence. They should also be asked to extinguish their cigarette, cigar, etc, or leave. If a customer is flouting the ban, you can refuse to serve them. If the offender is an employee, disciplinary action may need to be instigated.

This could obviously lead to confrontation, perhaps particularly so with customers on licensed premises. It should be made clear to staff that they should not put themselves in danger, and the assistance of the police should be sought if violence is threatened or encountered.

What offences can be committed?

A person having the management or control of a no-smoking premises will commit an offence if s/he knowingly permits another to smoke there. The penalty for committing this offence is a fine of up to £2,500. In addition, any failure to display appropriate signage could result in a fine of up to £1,000.

An individual smoking in a no-smoking area could face a fine of up to £1000.

How will the law be enforced?

Environmental Health Officers will be authorised to carry out enforcement action. They will have the power to enter no-smoking premises in order to determine whether the ban is being upheld. They will assess whether those in control of the premises have taken all reasonable precautions to avoid people smoking and their surveillance could be covert!

Further advice

Should you wish further advice on putting in place the appropriate policies and practices, please get in touch with your usual Maclay's contact, or visit the People section of our website ( www.mms.co.uk/EPB) for the contact details of our Employment Team.