Cutting through the smoke

The Health Act 2006 (HA 2006) has the potential to fundamentally change the behaviour of people in this country. From1 July 2007, it will become a crime to smoke or to allow someone to smoke in certain public places (sections 7 and 8). This public health-driven initiative is likely to produce a plethora of consequences, both foreseen and unforeseen, in respect of how it is enforced and what effect it might have on current causes of action in respect ofsmoking.

What will the Health Act 2006 do and what are the penalties?

Section 2 of the HA 2006 sets out what is to be covered by the ban. In essence, HA 2006 provides that those premises open to the public must be smoke-free during their opening times. Premises used as workplaces must be smoke-free at all times. However, premises must be 'enclosed or substantially enclosed', as defined by regulations issued under HA 2006, for the ban to apply.

The new Act provides for regulations to deal with numerous aspects, from exempted places to vehicles. It becomes an offence (carrying a fine of up to £200) to smoke in a smoke-free place, or to allow smoking (a fine of up to £2,500) punishable by prosecution or a fixed penalty notice. Recent reports show that in Ireland there are 31 impending prosecutions against landlords for flouting the smoking ban.

Wide range of definitions

The Smoke-free (Premises and Enforcement) Regulations 2006 (SI 2006/3368), in force also from 1 July 2007, define enclosed premises as those 'having a ceiling or roof and are wholly enclosed, other than doors, windows and passageways, either permanently or temporarily'. This would therefore apply to buildings with retractable roofs. The regulations define substantially enclosed premises as premises with a ceiling or roof, but an opening in the walls or an aggregate of openings, which amount to less than half of the area of the walls. The regulations have therefore given a wide definition to both of these terms and there is a likelihood therefore that many fixed structures will fall within one of them.

At least one railway company will refuse to allow people to smoke anywhere on any of its platforms despite the fact that many of them would fall outside the definition.

It is likely that some larger pub groups, for example, may seek to erect 'smoking shelters' which do not fall within the definition. However it will initially be difficult to be sure what constructions will fall within the definition.

In addition there is a risk that planning bodies will choose not to approve such structures (where approval is necessary) in line with public policy. Recently in Ireland a hotel was ordered to take down four tents it had erected for its smoking customers as it did not have planning permission.

Effect on existing causes of action

In a previous article ((2007) 151 SJ 560-561, 04.05.07) the authors discussed certain causes of action that are available to non-smokers prior to the HA 2006, however the HA 2006 will effect these actions.

Employees should find it easier to complain about smoking in their workplace after 1 July 2007. Indeed, the 'reasonable and proper cause' defence open to employers when facing a claim of constructive dismissal for breach of the implied duty of trust and confidence, will in effect have been removed.

No employer is likely to succeed in claiming they had a reasonable and proper cause for allowing smoking in premises that are covered by the Act. Similarly, complaining to their employer about the failure to implement the Act has the potential for protecting the employee from detriments caused by such 'whistleblowing' under s43B(1)(a) or (b) of the Employment Act 1996, namely that a criminal offence has been committed, is being committed or is likely to be committed or that the employer has, is or is likely to comply with a legal obligation.

A question also arises as to what happens to smokers who had traditionally enjoyed the employer's permission to have a cigarette break during work hours in a smoking room. Does the fact that the smoker now has to leave the building, adding to the length of the break, permit the employer to stop these breaks and potentially alter the contract? Some employers are installing systems requiring employees to clock-in and clock-out every time they go for a break.

Meanwhile, the law of health and safety will be made slightly easier for the claimant in so far as they may be provided with a source of evidence with which they can ask the court to find a breach of duty. If relevant to the issues in any given case the failure to implement the Act or its regulations will be cogent evidence of a breach of duty to provide a safe system of work.The authors' previous article referred to cases of assault or harassment arising out of smoking.

In the new environment created after HA 2006 it seems that such cases will have more likelihood of succeeding, subject as always to the question of damages. Moreover, coupled with the expansion of vicarious liability and the removal of the 'frolic' defence and the imposition of liability on an employer for a breach of statutory duty, at least in respect of harassment (Majrowski v Guys and St. Thomas' NHS [2006] UKHL 34) there is the potential for a further expansion in tortious claims.

Potential unintended uses

As with any new piece of legislation, particularly where policy is a governing factor, there is scope for unintended legal consequences to arise. It may be that a duty of care will now be found in circumstances where it was not before. So, for example what of the employer who takes his employees to a venue in which the HA 2006 is flouted? Presumably the policy behind the HA 2006 will make it easier for claims to be brought in negligence, assuming loss can be shown?

Or if an employee goes to the local pub during lunchtime, lights a cigarette and blows smoke in the face of a member of the public, can the employer be vicariously liable for the harassment, alarm or distress thereby caused, founding in damages for breach of the Protection from Harassment Act 1997? What of the employee with a company car who drives to work and smokes in the car? As the car is not shared, that would generally be fine, but what if he drops off his children and the neighbour's children at school on the way? Or picks up a hitchhiker? Is any demonstrable injury to their health vicariously attributable to the employer?

Further, what of the employer who does allow his employee to smoke, either on the premises in breach of HA 2006, or outside? Given public policy, can it be said that the employer now owes a duty to the employee not to let him smoke? And if the employee develops lung cancer, can the employer be successfully sued?

This is just speculation and in each case damages will be minimal failing any award of exemplary or aggravated damages. It will however be interesting to see what novel uses the new legislation is put to.

Conclusion

The ban on smoking at work is almost upon us. Employers would be best advised not to leave it until 1 July to explain the ban to their employees. The earlier they are advised of the impact it will have on them, and what the employers policy is for smoking the better for all parties concerned.

What the future of smoking litigation holds generally is uncertain with such a wide-ranging set of regulations whose impact may go beyond what the drafters intended.

And it may be 1 July 2007 marks the start of the legislative assault on smoking. In Ireland there is a debate about extending the ban to private cars as well as private homes where they are in 'multiple occupation'.