Since the smoking ban came into effect, it is common to see people smoking outside pubs, restaurants and workplaces. The Government is due to review the law in July, but what will it mean for your business? Legal expert James Hall explains.
Since the introduction of the smoking ban on 1 July 2007, it has become common to see smokers standing outside pubs, restaurants and workplaces. Unable to smoke anywhere that is enclosed and with many premises unable to provide a suitable outdoor area, many smokers have little choice other than to huddle together in groups around doorways.
Consequently, critics have said that the current ban does not go far enough. They claim that people now have to walk through a fug of second-hand smoke to enter buildings, not to mention the fact that efforts by organisations to create smart entrances can be marred by crowds of smokers and discarded cigarette butts on the pavement outside.
In response to such criticisms, health minister Andy Burnham recently announced plans to extend the current ban to include busy open air areas, such as doorways to public buildings, bus shelters and pub gardens.
It is a criminal offence to smoke in an enclosed or substantially enclosed public area, with a few minor exceptions - for example, smoking rooms in hotels and guesthouses. The legislation carries fines for smoking or failing to prevent smoking in such places and for failures to display the requisite no smoking signs.
The Government claims that there continues to be strong support for the ban and that within months of the ban coming into force, 98% of premises were compliant. Interestingly, a large number of employers have banned smoking completely from their premises, including outdoor areas.
However, under current law, organisations have no direct powers to prevent people from smoking on the pavement outside their premises. Employers can introduce contractual disciplinary sanctions for their employees to encourage them to move further away, but there is little that can be done by businesses such as hotels, restaurants and bars that are used predominantly by the general public.
The Government review is set to begin in July this year, the third anniversary of the ban. It is unclear when any such new measures may be implemented and exactly what areas they will apply to. What is certain is that the behaviour of smokers has changed considerably since the ban was introduced in 2007 and the Government will be approaching its research with a very different set of facts.
Inevitably, there will be a backlash and there has already been criticism about how to define "near a doorway". On many streets, there is little distance between doorways and this could result in smokers having to walk some distance from their office or the bar they are drinking in to find an appropriate place.
Further, many pubs and restaurants in urban areas are landlocked, with no outside space other than the pavement; an extension to the ban could cause major difficulties for these businesses already struggling in the current economic climate.
Concern has been expressed about the ability of businesses within the hospitality sector to survive if the ban is extended, particularly when considered in tandem with the Government's other plans to control binge drinking.
Whatever the outcome of the Government's research, current indications hint strongly at the ban being at least partially extended as part of Burnham's strategy to cut the number of smokers by 50% in the next 10 years. Even the most vehement pro-smoking lobbyists concede that once the initial ban came into force, it was only a matter of time before the measures would be extended.
If your organisation fails to prevent smoking in enclosed spaces under its control (including company vehicles), the penalties are harsh. Currently, the potential penalty is up to £2,500. Failure to display the required no smoking signs could result in a penalty of up to £200 or a fine in a Magistrates Court of up to £1,000.
James Hall is a trainee solicitor at Charles Russell LLP
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