2 Scotland's smoke-free legislation and how to comply - the legal imperative
This section sets out the requirements which the legislation places on employers and managers of organisations in Scotland. The smoking provisions of The Smoking, Health and Social Care (Scotland) Act 2005 6 and The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 7 come into effect at 6 a.m. on Sunday 26 March 2006.
You can access both pieces of legislation at www.clearingtheairscotland.com Some relevant definitions, as set out in the Act and Regulations, can be found in Appendix 1.
What the law means in practice
The law prohibits smoking in certain public places which are 'wholly or substantially enclosed', including the majority of workplaces. It will be an offence to smoke in no smoking premises or to knowingly permit smoking in no smoking premises.
Vehicles used for business purposes will also be affected by the law. These include light and heavy goods vehicles, and public transport such as taxis, buses, trains and ferries, but exclude cars (private or company-owned).
Premises affected by the smoke-free law
Those premises which are classed as no smoking premises under the law, if they are 'wholly or substantially enclosed', are set out in full in Appendix 1. In these premises, previously designated 'smoking' rooms will no longer be allowed.
The legal definition of 'wholly or substantially enclosed' is also set out in the Appendix. However, a simple explanation is that it is an area with a ceiling or roof that - except for doors, windows and passageways - is either wholly enclosed (whether permanently or temporarily); or is enclosed but for an opening which is less than half the area of its walls. If there is any doubt about whether particular premises comply with the smoke-free legislation, then independent legal advice should be sought.
How those in control of 'no-smoking' premises should comply with the smoke-free legislation
Detailed guidance 1 has been issued to all businesses and organisations in Scotland on how to comply with the smoke-free legislation. This can be accessed at www.clearingtheairscotland.com
From 6 a.m. on Sunday 26 March 2006, every business and organisation in Scotland, to which the law applies, will need to take all 'reasonable precautions' to ensure that employees, customers and other visitors do not smoke on their premises. This includes the display of appropriate no smoking signs on their premises.
The minimum recommended action, including for those no smoking premises within an NHS, local authority or other care setting is:
- To display the required no smoking signs (see page 12) in such a way to make staff, customers and visitors aware that the premises are no-smoking premises and that they must therefore comply with the law
- Remove all ashtrays
- Develop and implement a smoke-free policy with staff to ensure that infringements by employees, customers, members etc. are dealt with under agreed procedures
- Inform anyone smoking that he/she is committing an offence
- Ask anyone smoking to extinguish their smoking material immediately or leave
- Consider if it is appropriate to refuse service to individuals who are contravening the law, depending on the nature of the service being provided.
No smoking signage for premises
Businesses and organisations are required by the law to display no smoking signs in or on any premises that are affected by the ban, so that they can be seen and read by people in the premises and approaching the premises. They must be obviously displayed and protected from tampering, damage, removal or concealment.
The minimum signage requirement for premises is a no smoking notice which:
- Is at least 230mm by 160mm in size
- States that the premises are no smoking premises and that it is an offence to smoke there or knowingly to permit smoking there
- Displays the international no smoking symbol, at least 85 mm in diameter
- Displays the name of the person to whom a complaint may be made by anyone who observes someone smoking.
It's up to the manager or person in control of the premises to decide on the number of notices required to make sure everybody on the premises is made aware that smoking is not allowed. If you decide that you need more than one no smoking notice, the additional notices need to:
- State that the premises are no smoking premises and that it is an offence to smoke there or knowingly to permit smoking there
- Display the international no smoking symbol, at least 85mm in diameter.
No smoking signage for vehicles
You are also required by the law to display no smoking signs in or on any vehicles that are affected by the ban in such a way that the signs can be seen and read by persons who are in the vehicle, as well as persons approaching the vehicle in question. There's no legal requirement on the size of these signs but they must still meet certain requirements, as follows.
The minimum signage requirement under the new law for any relevant vehicles is a no smoking notice which:
- states that the vehicle is no smoking and that it is an offence to smoke there or knowingly to permit smoking there
- displays the international no smoking symbol
- displays the holder of a particular post ( e.g. the manager) to whom a complaint may be made by anyone who observes someone smoking
Copies of sample signage can be downloaded from www.clearingtheairscotland.com
You may, of course, develop your own signs, provided they comply with the above requirements.
Premises exempted under the legislation
There are few exemptions to the law. These are listed in Appendix 1 and include certain premises which may be the responsibility of the NHS, local authorities or care services providers, as follows:
- Designated rooms in adult care homes (an establishment providing a care home service exclusively for adults).
- Designated rooms in adult hospices (a hospice providing care exclusively for adults).
- Designated rooms in residential psychiatric hospitals and residential psychiatric units (a hospital, or hospital unit, the whole or main purpose of which is to treat persons with a mental disorder within the meaning of section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003) 8.
A 'designated room' means a room which:
a. has been designated by the person having the management or control of the no smoking
premises in question as being a room in which smoking is permitted
b. has a ceiling and, except for doors and windows, is completely enclosed on all sides by solid
c. has a ventilation system that does not ventilate into any other part of the no smoking premises
in question (except any other designated rooms) and
d. is clearly marked as a room in which smoking is permitted.
It is important to note that there is no legal obligation on the proprietors of those premises, to which an exemption applies under the new law to provide designated areas for smoking if they do not wish to do so.
Rationale for health sector exemptions
There are a number of issues which make it desirable to exempt adult care homes and hospices from the scope of the legislation, not least that these are effectively the homes of their residents.
However, safety and other considerations mean that in many such establishments smoking is not permitted in residents' own rooms, the places which most closely equate to their private place of residence. For this reason, particular consideration must be given to the impact of second-hand smoke on non-smoking residents and on staff.
Advice on addressing this situation can be found in Section 3 (Specific issues facing NHS organisations, local authorities and care service providers).
It is important to note that only residential adult care home premises are exempt. Day care centres are covered by the legislation.
Similarly, the position of patients in psychiatric hospitals and units, whether they are there voluntarily or on the basis of a compulsory order, is different to general members of the public. They do not have private rooms and may have limited access to the outdoors. For those reasons, designated rooms within such establishments have been exempted under the current legislation.
However, the Scottish Executive recognises that the physical health profile of those with mental illness in Scotland is poor and smoking rates are traditionally high. It is committed to reducing the health inequalities experienced by this group of patients and will work with service providers to implement a programme of targeted cessation, which may allow the exemption for designated rooms to be reviewed in due course.
Penalties and enforcement
Failure to comply with the law is a criminal offence. Individuals may be fined a fixed penalty of £50 for smoking in no smoking premises. The manager or person in control of any no smoking premises could be fined a fixed penalty of £200 for either:
- Allowing others to smoke in no smoking premises
- Failing to display warning notices in no smoking premises.
Refusal to pay or failure to pay may result in prosecution and a fine of up to £2,500.
The law will be enforced by Environmental Health Officers, who will have the power to enter no smoking premises to determine whether the law is being upheld. They will also assess whether or not those in control of the premises have taken all reasonable precautions to avoid people smoking. Inspections carried out by enforcement officers will either be pro-active (to advise employers or managers, and to confirm compliance with the law), or re-active (in response to a complaint). Inspections may also be incorporated within other health and safety and food hygiene inspections. (Further information on enforcement can be found in Appendix 3).