Guidance on smokefree legislation in England
Practically all work places and most enclosed public areas in England are smokefree by law. Specific information on how smokefree legislation are contained within smokefree regulations, made under powers within the Health Act 2006. The law has been in effect since July 2007.
Virtually all enclosed and substantially enclosed public places and workplaces in England are now smokefree. This includes offices, factories, shops, pubs, bars, restaurants, membership clubs, public transport and work vehicles that are used by more than one person. This includes indoor smoking with the exception of residential care homes, have been removed. So anyone wishing to smoke will have to smoke outside. Essentially the legislation is trying to ensure that almost all workers, regardless of their place of work, are protected from the risks to health of exposure to tobacco smoke.
As part of the change in law it is likely that premises owners may want to provide some form of shelter for smokers. The legislation does not require the creation of shelters for smokers and an owner of premises cannot be compelled to make such provision.
However, it is likely that some businesses will want to build shelters to accommodate people who work on or visit the premises and who can no longer be allowed to smoke inside their buildings.
One thing to point out, the legislation does not deal with the construction smoking shelters however, if built they need to comply with the 50% rule (see below). Therefore the approval of such shelters, or otherwise, will necessarily be a matter for local determination by Environmental Health staff liaising with planning officers and others to ensure that any shelter that is used for smoking is not substantially enclosed and can be used by smokers without offences being committed.
Premises will be considered to be enclosed if they have a ceiling or roof and, except for doors, windows or passageways, are wholly enclosed, whether on a permanent or temporary basis.
Premises are substantially enclosed if they have a ceiling or roof, but there are openings in the walls which are less than half the total areas of walls, including other structures which serve the purpose of walls and constitute the perimeter of premises.
This is known as the 50 per cent rule - put simply:
- If 50 per cent of the walls or more are missing then it is legal to smoke in the area; or
- If more than 50 per cent of the walls are present then it is illegal to smoke in the area.
When, calculating the area of an opening, no account can be taken of openings in which there are doors, windows or other fittings that can be opened or shut.
A roof includes any fixed or moveable structures, such as canvas awnings.
Tents, marquees or similar constructions will also be classified as enclosed if they fall within the definition (note that tent/marquee side-panels will be classed as rolled down even when they are rolled up).
In general if an opening or cover can be closed, the 50 per cent rule will be calculated on the basis that those openings are closed.
Where businesses wish to erect shelters they will need to give consideration to the following:
- Planning requirements, Building Control requirements, Licensing requirements in terms of outside hours/use of the street.
- Noise issues, especially at night and adjacent to residential areas
- Provision of suitable litter receptacles to help keep the streets/outside areas clean; and
- The use of temporary covers that may cause the structure to be classed as substantially enclosed.
The siting of the shelter is also important and it is therefore recommended that:
- It should not be sited too close to sheltering walls or other structures which may prevent proper air-flow through the shelter since this would not only be against the spirit of the law and common sense but could also effectively render the structure substantially enclosed.
Employers, owners and managers must ensure that their premises are smokefree. You must put up 'no smoking' signs which meet the following minimum standards:
- Displayed at each public entrance to the premises
- In a position that is prominently visible to persons entering the premises
- A5 (148mm by 210mm) in size
- Include the international red "no smoking" symbol and the words: "No smoking. It is against the law to smoke in these premises."
Workplaces which are already smokefree will also need to display the mandatory signs.
Vehicles used as a workplace by more than one person, whether or not they are in the vehicle at the same time, will also have to be smoke-free at all times. This is because tobacco smoke is absorbed into soft furnishings and stays around for weeks long after a cigarette has been stubbed out. All smokefree vehicles need to prominently display 'no-smoking' signs.
What are the penalties for non-compliance?
Enforcement authorities, e.g. environmental health officers, are authorised to issue the following penalties:
- Failure to display minimum no smoking signs: up to £1000 or £200 fixed penalty notice
- Smoking in a no-smoking place: up to £200 or a penalty notice of £50
- Failing to prevent smoking in a smoke-free place: up to £2500