Operators risk a £2,500 fine if they fail to implement
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the workplace smoking ban Words: Patric Cunnane Few in the industry can be unaware that smoking in the workplace is banned — this includes vehicles used for work by more than one person. The Health Act 2006 banned smoking in enclosed workplaces, public buildings and public transport in the UK. Local authorities are responsible for enforcing the ban in buildings and premises and will act on employee tip-offs. Employers who fail to prevent staff from smoking could also be in breach of general health and safety law. Convictions must be reported to the traffic commissioner, who can then take action against an 0-licence.
So what policies must operators comply with to stay on the right side of the law? Paul Arthurton, MD of Norfolkbased Paul Arthurton Transport, encourages drivers to avoid smoking and has company policies displayed on depot walls and in cabs.
"Drivers on a night out can only smoke when they have stopped working for the day. They must also abide by the smoking rules that apply at customers' premises," he says. Arthurton's example shows that fewer drivers, in common with the rest of society, now smoke.
Andy Boyle, MD of ABE (Ledbury) agrees. "Most of my drivers have given up, as have I," he says. "We make it at you can't smoke on the premises, in the • nor on other companies' premises': oesn't provide a smoking shelter because he that condones the habit. In any case, there's not all among ABE's 45 drivers, including part-timers. years ago at least half my drivers smoked, now just one. The only way we've influenced the n was to enforce the regulations."
ver, a bizarre development has been reported by ight Transport Association (FTA) — some members en issued with £50 penalty charge notices (PCNs) forcement officers spotted drivers apparently g while driving. clear t vehicle He • believe much. 'Ten there H decis o How the F have b after e smoki Fine • for smoking e-cigarettes The ci. arettes were, in fact, electronic cigarettes, which from a distance can be easily mistaken for the real thing. 'We' e been told of photographs taken by local authori officers and used as evidence to issue a fixed penalt says Es Shepherd, the FTA head of member advice. "Many e-cigarettes look like real cigarettes, so it's very di icult to prove they were not. Fines have certainly been H sued."
re to prever smoking in a smoke-free place s a fine of up to £2,500.
oking in a smoke-free place, including company les used by more than one person, carries a penalty of £50 (£30 if paid within 30 days) or up 00 if awarded by a court. The maximum fine in land is £50.
ilure to display the required no smoking signs s a fixed penalty of £200 (£150 if paid within 15 ) or up to £1,000 if awarded by a court. Fail carri ehir f ixe • to Scot F. carri day WHAT SHOULD EMPLOYERS DO?
The F1A's Smoking ir Public Places Compliance Guide offers advice for employers, including detailed specifications of no-smoking signage.
Employers should issue a no-smoking policy stating why it is necessary and who is responsible for implementation. The policy should set out legal penalties and disciplinary action for employees who ignore it, and include information for smokers who want help to stop.
The operator should identify all premises and vehicles affected, fix appropriate signs and update the employees' handbook. Steps should be taken to ensure visitors and customers are aware of the legislation and that action will be taken if they fail to comply.
E-cigarette or not, tachograph records might prove that the vehicle wasn't shared by drivers, but employers must also consider whether other employees, such as yard shunters and workshop staff, are also in regular contact with the cab.
The e-cigarette has also caused controversy within non-mobile workplaces.
Shepherd says: "There have been instances where employees have asked whether they can use them in the office and have been refused.
"They then asked if they could have a separate smoking area from the real smokers."
E-cigarettes aren't covered by the legislation, but operators should think carefully about what action to take.
'They should issue clear guidance;' says Tim Culpin, partner at law firm Aaron and Partners. "Drivers should be warned that the use of e-cigarettes may lead to evidential difficulties; how can you prove it wasn't a cigarette?"
Tim Ridyard, partner at Woodfines Solicitors, believes some employers might decide to ban e-cigarettes on the grounds that they cause confusion. "The burden of proof is on the prosecuting party" he says, "it does not shift so that the driver has to prove it wasn't a cigarette."
urther information fta.co.uk 0870 605 0000 gov.uk/smoking-at-work-the-law se history fined £200 for absence of no smoking sign Are nt case in which a van driver was fine. for not displaying a no smoking sign in his c b is a timely reminder that the regu ations are enforced, and can prove costl to those who are caught.
N. n-smoking van driver Freddie Beasley was rdered to pay £200 for failing to display a no smoking sign in his cab following a joint oper tion between Haringey Council and the polio . The fine is four times more than if he had een actually smoking. Beasley works for pest control firm Cleankill Environmental Services. "We were bloody annoyed," says director Paul Bates. "It was a new van that had just been signwritten, and there was a no smoking sign waiting for it at the office. We don't allow smoking in any of our vans or in the office." He saw little point in appealing. "If you go to court you may pay more, and for a small company it's not worth the management time." Only three or four drivers in his 12-van fleet now smoke. On the day Beasley was stopped, Haringey Council, police and bailiffs had joined forces in Operation Stop It, aimed at unlicensed waste carriers, fly tippers and other perpetrators of environmental crime. The council denies the fine was over zealous.
"We just comply with the law," says a council spokeswoman.
"It's there to protect employees who don't want to be in a smoking environment."