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The Health and Safety at Work etc. Act 1974 s.2(1) could be used to require an employer to take reasonably practicable precautions to ensure the health of their employees from environmental tobacco smoke(ETS). However, the balance of benefit against cost, etc, means that each situation needs to be considered on its merits. The Health and Safety at Work Act (1974) states that “it shall be the duty of every employee to ensure, so far as is reasonably practical, the health safety and welfare at work of all his employees”. If an employee complains about the effects of tobacco on themselves the employee must take remedial action. Adopting a smoking policy, in consultation with staff, will help protect employees from the effects of passive smoking, and assist employers to comply with the legislation and the provisions of the soon to be published Code of Practice on passive smoking at work
The Management of Health and Safety at Work Regulations 1999 (MHSW Regulations which came into force on 29 December 1999), require every employer to assess the risks to health of employees to which they are exposed whilst they are at work. The purpose of the assessment is to assist the employer in complying with the relevant statutory provisions, including HSW Act s.2. It will therefore be relevant where HSW Act s.2 is considered to apply to ETS. Whilst the ACOP Management of health and safety at work makes it clear that employers can usually ignore trivial risks or those arising from routine activities associated with life in general, the requirements will apply to ETS when the risks are considered to be significant.
The Workplace (Health, Safety and Welfare) Regulations 1992 and Approved Code of Practice contain:
(a) Regulation 6 which requires employers to provide effective and suitable ventilation. However, it should be noted that the Froggart Report stated that improved ventilation did not provide an adequate safeguard against exposure to ETS.
(b) Regulation 25(3) which requires employers to protect non-smokers from discomfort caused by tobacco smoke in rest rooms and rest areas. The ACOP suggests that methods of achieving this include the prohibition of smoking in those places or the provision of separate areas for smokers and non-smokers.
These regulations came into force on 1 January 1993 for new workplaces and will do so on 1 January 1996 for existing workplaces.
HSE Solicitor advises that the Control of Substances Hazardous to Health Regulations 2002 (COSHH) do not apply because the hazard does not arise out of or in connection with the work activity.
There is no intention at present to introduce specific legislation to control smoking in the workplace.
Unlike most airborne contaminates there is no occupational exposure limit for ETS or guidelines that can be used, nor are there plans to develop one under the present WATCH/ACTS programme. Any reference to the quantity of ETS in the working area must remain subjective and common terms such as "light', 'heavy" and even "dense" and "persistent" which are used to describe smoky atmospheres cannot be correlated with an identifiable health risk.