UK: Passive employers can't dodge the smoking debate.

UK: Passive employers can't dodge the smoking debate. - Passive smoking is set to become this year's big health and safety issue for employers. Those who fail to implement effective smoking policies in the workplace are already facing the potential prosp

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Last Updated: 31 Aug 2010

Passive smoking is set to become this year's big health and safety issue for employers. Those who fail to implement effective smoking policies in the workplace are already facing the potential prospect of a raft of legal actions brought by their own staff. Furthermore, the Government is now resolved to force them to put effective smoking policies in place.

Tougher regulations are on the cards. A Government White Paper on control of use of tobacco is due out this summer, based on research by the Government's scientific watchdog, the Scientific Committee on Tobacco and Health, which shows that 120,000 people die a year from smoking-related diseases and that non-smokers exposed to tobacco smoke have a 26% higher risk of getting lung cancer. The Committee has been quoted as saying 'the Government should take effective action to limit this preventable epidemic'. The Government has confirmed that it is ready to support a voluntary ban on smoking in public places.

For employers of staff working in places ranging from offices to leisure venues such as pubs or clubs, the impact could be extreme. In a legal opinion recently obtained by lobby group Ash (Action on Smoking and Health), leading barrister John Melville-Williams QC argues that tobacco smoke is one of the many hazardous substances from which employers have a duty to protect their workers under the Health and Safety at Work Act 1974. Further, he reckons that current knowledge of the dangers of passive smoking is now such that no employer can use ignoranceor uncertainty as an excuse for failing to take action.

His opinion is supported by a series of recent legal cases, in which judges have interpreted a wide range of statute and case law in favour of non-smoking employees. The powers of the Health and Safety Executive (HSE) remain ambiguous on passive smoking, however, and ASH is calling on the Government to strengthen the HSE's powers and to include tobacco in the list of harmful substances set out in the Control of Substances Hazardous to Health regulations, which the HSE uses to prosecute employers.

Faced with huge potential claims for negligence, breach of contract, and constructive dismissal, some employers are beginning to take steps to ban smoking from the workplace. But total prohibition may not be the answer. As Marjorie Nicholson, a director of the no smoking action action group, Forest, explains: 'The prohibitionist route of some employers has just created more problems. In the interests of good employee relations, the employer must approach the matter as a management issue rather than just a smokers versus non-smokers battle.'

Doug Gummery of the Institute of Personnel and Development agrees that a balance is important. 'Employers have to take notice of the research and establish smoking policies. But they must remember that policies affect two types of employee: those who smoke and those who don't.' Employers looking for advice on how to create a fair and workable policy could do worse than contact Forest, which has just published a detailed information pack on the subject.

One thing seems clear. Whether or not you approve of smoking is irrelevant.

As an employer, you need to balance your legal duty to protect your non-smoking staff from the ill effects of smoking with the need of your other employees to smoke. One may cost you money, the other may lose you staff.

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