UK Employment Rights Act 1996 (External Web Page)

In Force, Legislation England, Wales and Scotland only

Legislation to ban smoking in the workplace in England was passed in July 2006 and will enter into force in mid 2007. Similar law will apply in Wales and Northern Ireland. Scotland has already enacted legislation which came into effect in March 2006. Until the Health Act is implemented in England, employees may be given some protection in law by the Employment Rights Act and Health & Safety at Work Act.

Non-smokers may claim that smoking at work has caused them distress or forced them to leave their job and can cite the employer as being in breach of the Employment Rights Act 1996.

The contract of employment which regulates the relationship between employer and employee is subject to general principles of statute law. In addition to expressed terms within the contract there will also be ‘implied terms’. These may be implied by statute such as the Health and Safety at Work Act 1974, or by common law. Such implied terms include the common law obligation placed on employers to take care of employees. This obliges employers to take all reasonable steps to protect employees as soon as they are aware of a risk, or could be expected to be aware of a risk. 

Public Places Charter (Voluntary Agreement In Force) (External PDF)

Agreement between the government and bodies representing the hospitality industry that recognises that non-smoking is the norm and that there should be increasing provision of facilities for non-smokers. The Public Places Charter was set up in 1998 and warrants a written smoking policy, implementation of non-smoking areas and installation of ventilation systems as appropriate, by pubs. However, a progress report published in April 2003 found that 46% of restaurants and pubs surveyed still allowed smoking throughout. Until legislation prohibiting smoking in public places and workplaces is implemented, this voluntary agreement remains in force.

EU Council Directive 89/391/EEC (In Force) (External Web Page)
Health and safety of workers framework directive, has wide-ranging provisions and sets down minimum requirements for the effective managerial control of health and safety matters at work.

Although this directive does not make specific references to tobacco, provisions laid out in articles defining the responsibilities of employers do oblige them to pay regard to risks to exposure. For example, provisions demand that particularly sensitive risk groups must be protected against the dangers which specifically affect them. This could offer protection to asthmatics from exposure to passive smoke in the workplace.

Statutory Instrument 1992 No. 2051 (External Web Page)

Council Directive 89/391/EEC is implemented in England by Statutory Instrument 1992 No. 2051 as ‘The Management of Health and Safety at Work Regulations 1992’.

EU Council Directive 89/654/EEC (In Force) (External Web Page)
If staff restrooms are provided appropriate measures must be taken for the protection of non-smokers against discomfort caused by tobacco smoke.
This means that where there is a single rest area, it should be non-smoking.

Statutory Instrument 1996 No. 1592 (External Web Page)

EU Council Directive 92/85/EEC is implemented in England by Statutory Instrument 1996 No. 1592 as part of The Construction (Health, Safety and Welfare) Regulations 1996 (Schedule 6).

Council Directive 92/85/EEC (In Force) (External Web Page)
This EU Directive lays out measures to encourage improvements in the safety and health at work of workers who are pregnant, who have recently given birth or are breastfeeding.

The above workers must be considered a specific group – and exposure to dangerous agents, processes or working conditions must be assessed – and provisions made to protect such workers.

In the case of pregnant women being exposed to passive smoke, this legislation requires the employer to make an assessment of the risks involved, take measures to limit or eliminate those risks, or relocate the employee affected in another position.

Statutory Instrument 1994 No. 2865 (External Web Page)

Council Directive 92/85/EEC is implemented in England by Statutory Instrument 1994 No. 2865 as part of The Management of Health and Safety at Work (Amendment) Regulations 1994.

EU Council Directive 90/394/EEC (In Force) (External Web Page)
The carcinogens at work directive aims to protect workers against the health and safety risks that might arise from exposure to known carcinogens. Where there are workplace carcinogens (not including tobacco smoke itself!) then the employer must warn employees of the additional risks arising from tobacco use.

Article 11
Information and training of workers
1. Appropriate measures shall be taken by the employer to ensure that workers and/or workers' representatives in the undertaking or establishment receive sufficient and appropriate training, on the basis of all available information, in particular in the form of information and instructions, concerning:
(a) potential risks to health, including the additional risks due to tobacco consumption;

Bizarrely, the COSHH regulations also require:

7.(3) Without prejudice to the generality of paragraph (1), where the assessment made under regulation 6 shows that it is not reasonably practicable to prevent exposure to a carcinogen by using an alternative substance or process, the employer shall apply all the following measures, namely—

[…]

(e) the prohibition of eating, drinking and smoking in areas that may be contaminated by carcinogens;

Banning smoking (the emission of carcinogens) where people smoke doesn’t seem to be the intention of this law – it seems the carcinogens have to arise in the process of work itself.

Statutory Instrument 1994 N. 3246 (External Web Page)

The UK Control of Substances Hazardous to Health (COSHH) Regulations Statutory Instrument 1994 N. 3246 (6,7) implements this.