Stubbing out

It is now widely known and accepted that the government will push ahead with its ban on smoking in public places from 1 July 2007. Whilst not going quite so far as Judge Dredd's vision of 'Smokeatoriums' in 2000AD, the forthcoming Health Act 2006 (HA 2006) places serious limitations on smoking, criminalising it in certain places, HA 2006 s 7.

Claims in tort

It is arguable that a person exposed to smoke by their employer, or by some other party owing them a duty, could bring a claim in negligence. To succeed such a person would have to show that they had suffered loss in respect of the breach of duty. Thus, for example, a person developing lung cancer having worked for many years behind a bar in a smoky pub might be able to bring a claim. They will, of course, have a high hurdle to climb inasmuch as causation is concerned. It is therefore unlikely that, save in exceptional circumstances, such a claim would succeed. However the law of negligence does appear to be moving towards allowing claimants to succeed against one of a number of potential tort feasors where, for example, exposure to asbestos has been established but the exact cause is not known (see Fairchild v Glenhaven [2002] UKHL 22; Barker v Corus [2006] UKHL 20 and the Compensation Act 2006). In principle this could apply to smoking-related diseases, although it must be noted that in Fairchild all members of the House of Lords emphasised the exceptional nature of the liability. As Lord Hoffman said:

'In Fairchild, the state of scientific knowledge about the mechanism by which asbestos fibres cause mesothelioma did not enable any claimant who had been exposed to more than one significant source of asbestos to satisfy this test. A claim against any person responsible for any such exposure would therefore not satisfy the standard causal requirements for liability in tort. But the House considered that, in all the circumstances of the case, that would be an unjust result. It therefore applied an exceptional and less demanding test for the necessary causal link between the defendant's conduct and the damage".

At present, then, the special circumstances of the asbestos litigation remain an exception. However if an exception can be made for asbestos, it is not entirely impossible that one day an exception may be made for passive smoking.

What of the person who develops asthma, or develops an allergic reaction to smoke? Where there is evidence that a person's workplace environment, on the balance of probabilities, caused such injuries, that person could bring a claim against their employer or some other duty-holder.

There is also an argument that, for example, blowing smoke in a person's face could constitute assault. However any injury caused is likely to be minor; any damages will be low, although they could, for example, include dry cleaning costs, etc.

The implementation of the HA 2006 has the potential to affect tortious liability in a number of ways. A prime example is likely to be the removal of the defence of consent to harassment or assault claims, at least where smoking is banned. This will be considered further in the forthcoming second article.

Health and safety and similar

Employers have a duty under the Health and Safety at Work Act 1974 and associated legislation (including the Control of Substances Hazardous to Health Regulations 1999 (COSHH)) to ensure, so far is as reasonably practicable, the health, safety and welfare of their employees, and do all that is reasonably possible to provide a safe place of work. An employer therefore has a duty to protect employees from hazardous substances such as tobacco smoke. Many employers have introduced smoking rooms whilst banning smoking from general shared work areas. It is arguable that such rooms constitute an exposure to hazardous substances. Such smoking rooms will no longer be available once the HA 2006 comes into force, and employers will potentially have to consider whether the congregation of employees directly outside a workplace entrance, for example, may result in exposure to hazardous substances to those walking past. COSHH applies equally to passers-by as to employees. Unlike in a traditional tortious claim, the onus is on the employer to show that the substance complained of is not hazardous.

Constructive Dismissal

The failure by an employer to have regard to his employees' health and safety can constitute a fundamental breach of contract enabling an employee to resign and claim unfair dismissal. The leading authority concerning smoking is the case of Waltons & Morse v Dorrington [1997] IRLR 488 where the Employment Appeal Tribunal stated that:'The employer will provide and monitor for his employees, so far as is reasonably practicable, a working environment which is reasonably suitable for the performance by them of their contractual duties' [at page 490].

The key word in establishing the extent of this duty is 'reasonable'. It is not a total prohibition. Indeed, the implementation of any policy by an employer does carry with it a risk that smokers will themselves feel aggrieved, resign and claim constructive dismissal. Therefore any restrictions to be imposed need to be approached with their views and feelings in mind as well.

The HA 2006 has little regard for such concerns. If the workplace is caught then smoking is not allowed at all. Smoking rooms are not an option. What was permissible on Saturday, 30 June 2007 will not be so the next day. Any employer failing to implement the Act and Regulations faces not only the sanctions imposed by the Regulations, but also litigation from affected employees, who undoubtedly will find it easier to succeed where the duties imposed by the HA 2006 have not been complied with.

Protection from Harassment Act (PfHA)

When Parliament was debating the PfHA no-one could have foreseen the extent of its impact. Recent authorities have enabled employers to be held vicariously liable for the acts of their employees and the PfHA has been applied well beyond its original purpose of deterring stalkers. In a previous article the authors discussed the potential impact of this PfHA in certain discrimination claims. It will come as no surprise to read that the PfHA has an impact when dealing with smoking.

The PfHA's wide definition of 'harassment' to include alarm and distress is not exhaustive. There is clear medical evidence as to the impact of secondhand smoke on the health of others. The traditional tortious rule that one must 'take your victim as you find him' means that there is ample scope for someone affected by secondhand smoke to seek redress against either the smoking individual or that individual's employer. It does not take too much to envisage someone complaining that having smoke blown in their face by another caused them distress. Of course, as in the case of tortious assault mentioned above, the quantum of any damages awarded are likely to be extremely low.

Further, the PfHA does not require any relationship between the wrongdoer and the victim (such as employer and employee). Anyone can bring a claim against another if they have been subjected to two acts (or one act and perceived a second act) that caused them harassment.

Potential for action

Non-smokers have a number of potential causes of action in respect of the smoking habits others (be they fellow employees or not). The HA 2006 will potentially broaden the categories of causes of action. Our society is moving closer to a litigation culture and it is likely that we will begin to see a number of cases coming to court in the near future which will test the boundaries of legal principle and may well result in more successful claims in respect of smoking. The authors will return to this topic in a forthcoming article, where we will consider the effects of the HA 2006 in more detail as well as speculating on some of the more unforeseen possibilities its implementation may produce.