Rank: Guest 
|
Posted By Pete48
This thread comes out a thread looking at he provision of smoking shelters or huts for employees who smoke. Discussion had developed around whether employers should provide these shelters or not.
One post suggested that employers would be "reckless" in providing such shelters whilst others were as positive in their rejection of providing such kit.
I am faced with decisions in this area and would like to ask Aidan if he could define more closely the legal position that leads you to use the term reckless and why you are so clear in your judgement?
Up to now, I have seen this as recognition of an addictive habit that employees will probably continue to undertake and that I have no duty to dissuade them in any form. I recognise that offering help to those who wish to break their habit is recommended.
Since the provision of a shelter can only be legal (talking Scottish law at the moment but likely that English law will be much the same) as long as it does not constitute an enclosed space, the risks to the employee is no different whether the shelter is there or not? By allowing them to smoke, of their own free choice, in an "open" area, sheltered or not, on my premises what liability or responsibility am I really accepting?
I really do not know the answer. I am not interested in moral arguments, they are pretty clear; it is the legal position that I seek to explore.
Thanks
|
|
|
|
|
|
Rank: Guest
|
Posted By NeilM Poyznts-Powell
Hi Pete,
The only current liability that I could see may come from a future civil case brought by a smoker.
You might be interested to hear that the Government has asserted in a white paper that all ate ownsed buildings and grounds (this includes within vehicles) should be smoke free by the end of the year.
I have also heard that the recent worplace smoking legislation is due to be ammended to prevent smoking at the entrance to work premises.
Regards,
Neil
|
|
|
|
|
|
Rank: Guest
|
Posted By Calum Clark
I can't see that smokers could bring any legal action against their employer for providing a smoking shelter with relation to smoking related diseases. Its a bit like saying a morbidly obese person should sue an employer for providing canteen facilities that sold healthy and fatty foods. Smokers smoke on their own time and of their own free will and accord.
The employer is not encouraging smoking, simply providing an area to keep smoke away from non-smokers.
If the Government are to ban smoking on all state owned grounds then good luck to them. Its a commendable notion that will likely result in smokers hiding in nooks and crannies.
|
|
|
|
|
|
Rank: Guest
|
Posted By SafeDavid
I'm working in association with a hospital which is following the government decree on this and has already banned smoking anywhere within its grounds (Indoors and Out).
So the smoking shelters it used to have are now no longer allowed to be used, and will presumably be disposed of before long. (NatashaL in another thread could try asking her local hospitals - she might get one free!)
Interesting spin-offs to consider :-
1) Covert smoking is already on the increase - piles of fag ends in the waste management compound near waste paper/cardboard etc bear witness to this.
Okay, perhaps that area should be fenced off better, but it makes the point - they would go somewhere else, possibly inside the hospital building itself and present a greater risk.
2) Because they can't smoke anywhere on the premises, those staff (and some patients in their dressing gowns) go just off the site and sit in a bus shelter in the lane outside.
Apart from the fact it doesn't very look good seeing nurses in uniform smoking outside a hospital, this raises the question of violence and aggression, which is quite topical in the healthcare sector at the moment. i.e. persons with ill intent might be attracted to this otherwise quiet little road - especially with the dark evenings drawing in.
This raises interesting questions about the Health Trust's legal liability in the event of a compensation claim coming in from a nurse or patient having been attacked under these circumstances.
The case of Flamingo's night club (Mattis v Pollock 2003 EWCA Civ 887) set the precedent of employers being vicariously liable for incidents of violence arising away from their premises.
Although the circumstances at Flamingo's were quite different (and who can predict what a court might rule) my feeling is that it could be argued that the employer's policy (no smoking anywhere on site) was a significant factor in the person being where they were when attacked. So such a claim might well succeed.
Is this a question of the Government bringing in an eye-catching, sweeping policy without thinking through all the possible ramifications?
Personally I think that whilst NHS Trusts should be encouraged to prohibit or discourage smoking in their grounds, they should be left some discretion.
Any views anyone ?
|
|
|
|
|
|
Rank: Guest
|
Posted By Richard Chalkley
Safe David,
I agree. We have a duty of care to all employees.
OK Smoking is a dirty, nasty habit but it is legal and employer accept that employees will smoke at work.
It is my opinion that we should provide a suitable shelter.
On the management front - How much working time is lost walking on and off the site by the smokers?
Richard.
|
|
|
|
|
|
Rank: Guest
|
Posted By SafeDavid
Good point Richard. And it "grates" with non-smokers who don't get those 5 minute breaks !
|
|
|
|
|
|
Rank: Guest
|
Posted By markl
The NHS Trust I work has also implemented a no smoking policy (I believe all Trust's will have done this by now as it is already mentioned above that the DoH issued instructions to this effect).
In answer to one question raised - very little time is lost as members of staff can only leave the site on unpaid breaks - so in theory there should be very little expense involved. The threat of a claim or prosecution for this would make for an interesting an interesting legal argument as they would not technically be at work or on the Trust's premises.
What will be interesting is come 1st Nov, as it is my understanding that Environment Health Dept will be able to issue fixed penalty fines for dropping litter, including cigarette butts. How please would be for being fined for following your organisation's policy?
Admittedly there is a counter argument to all this that smokers are adults, and in the case of NHS Trusts, the majority of staff are highly trained and educated people who should be able to make rational choices about whether they smoke, where they smoke and what they do with the butts.
|
|
|
|
|
|
Rank: Guest
|
Posted By Paul
Are employers opening up the duty of care case for a smoker who is told to stand in a smoke filled hazy polluting atmosphere? Excessive passive smoking as promoted by the company? Likewise if a shelter is to be provided for smokers, how far is reasonably practical to safeguard the employees health at work ? If an employee caught pneumonia and was off sick because the company provided a plastic shelter with no heat or windbreak then RIDDOR could come into force because the company is responsible for the staff working conditions.
Yes I smoke.. but not at work.
|
|
|
|
|
|
Rank: Guest
|
Posted By Tony Brunskill
Firstly, I am a smoker.
If smokers fail in their attempts to hold Tobacco Manufacturers liable for ill health effects what chance does the smoker have of succeeding in civil actions against an employer.
|
|
|
|
|
|
Rank: Guest
|
Posted By Paul Oliver
My most favourite part of the day is coming to work and walking through a great big cloud of fag smoke at the office entrance, kick starts my lungs to no end, and my clothes smell really nice for the rest of the day. :-)
Whats the point in installing shelters when smoking will be banned in th workplace next year anyway, waste of money really and could be better spent elsewhere.
In the interim inf people need to go outside for a cigarette, ask them to bring an umbrella to work.
|
|
|
|
|
|
Rank: Guest
|
Posted By Rob T
I am just waiting for the first case against an individual disciplined for smoking in the open air. NHS trusts imposing nazi rules in saying that workers cannot smoke in "their" grounds (sorry they don't own the grounds the public do) will find that the case will go all the way to the court of human rights. SINCE WHEN DOES ANYBODY OWN THE OPEN AIR?
Do you remember the "Total Recall" film when Cohegan turns off the air to some of the people? Who said it could never happen on earth?
It's only one borough in London who are proposing that they can ban smoking around entrances - I'd like to see them try. In fact if they do I will personally take a day off and stand there smoking and will happily take them to court - all the way.
Prohibitionists have never won except in fascist dictatorships and even most of those came tumbling down.
The anti smoking brigade have got what they wanted concerning smoking inside NOW GO AWAY AND LEAVE IT ALONE!!!!
I'll bet some of them are now sitting round like Paul Whitehouse's Frank saying OI SMOKERS NOOOO if they were to come round here etc. He was of course portrayed as quite psychotic.
|
|
|
|
|
|
Rank: Guest
|
Posted By markl
If I remember rightly from my first year law lectures (or I was possible asleep and dreaming at the time), originally when someone owned a property (including grounds) they owned above to heaven and below to hell. Some legislation has been put in place to protect utility companies and commercial airlines etc but as it was common law I presume the principle is still in tacked. So there is a legal argument to who owns air on a property. But that said I don't recall anyone trying to charge me for breathing air at their premises or home (now there's an idea....).
Totally agree with smoking outdoors being banned is a step to far, but the cost to the NHS of smoking is supposedly enomorous and so they have to be seen to be taking a lead in reducing the occurrance of smoking.
|
|
|
|
|
|
Rank: Guest
|
Posted By andymak
I heard that one NHS trust has implemented disciplinary procedures for any of it's staff found to be helping inmates (sorry patients) off of the premises to have a smoke, as smoking is banned within their perimeter.
As smoking is only going to be banned in enclosed work places, including works vans, hire cars used for business, and home offices which I feel is going to be a really difficult one to enforce! The use of a smoking shelter is I think a good idea.
As an ex-smoker I found that I spent no more time away from work smoking than my non-smoking colleagues did whilst they were making and drinking tea / coffee, chatting on mobiles etc, etc. At least as a smoker I used to multi-task as I would take my coffee and mobile with me on my fag break!!
|
|
|
|
|
|
Rank: Guest
|
Posted By Tabs
Firstly I am an ex-smoker, who now hates the smell and the resulting litter of smoking.
Civil liberty has been eroded over the last forty years and this is one example where I would prefer it be left to common sense, but it's not my call.
Providing a shelter for whatever legal purpose cannot lead to court problems. If the incoming legislation specifically includes an offence of aiding and abetting - or prohibits the provision of such shelters, then that will be a different matter - but for now, I cannot see there being a problem.
Cigarette smoke seems to have escaped COSHH - incredible considering the toxins, eh?
Rob T - I think your comparison of a smoking ban to what was done by the Nazis is wrong, and would point out that all social groups except pure anarchists have such rules of one type or another.
|
|
|
|
|
|
Rank: Guest
|
Posted By Pete48
Thanks to all who have responded. No one could easily identify any clear or focused legal arguments about specific liability accruing from allowing smokers to smoke in the open air parts of my premises. Some of the examples given in support of likely failure of any civil claim were useful.
Of course, it doesn't mean there will not be some liability but I can continue with my research knowing that there is nothing so obvious that "everyman" knows about it.
I noted the comments about the NHS and others banning smoking anywhere on their premises. For the NHS, the moral aspects are clearly much greater than for others. One might expect them to go further than the letter of the law requires as part of leadership on health matters. However, this no different, in my view, than the better run companies in society who take the law as nothing more than a minimum requirement or standard.
A read of the guidance available (in Scotland at least)for NHS makes an interesting five minutes. All the issues about staff safety and security are there. The one point that hit out for me is the guidance when dealing with patients who smoke. In specific and clearly defined circumstances, tobacco substitutes (patches?) can be given. One benefit being that the smoker may go on to use this approach as part of cessation as they recover from their medical treatment. Now there is sensible risk management in practice.
|
|
|
|
|
|
Rank: Guest
|
Posted By NeilM Poyznts-Powell
Hi Pete,
Just to make it clear that the Choosing Health White Paper is not limited to the NHs, but in fact covers all government owned premises and grounds, with some exclusions e.g. prisoners etc.
Regards,
Neil
|
|
|
|
|
|
Rank: Guest
|
Posted By Aidan Toner
Hi Pete- Sorry for not replying earlier. No I wasn't busy chopping down smoke shelters or stuff like that!!!.I did in deed use the words 'reckless to supply shelters' but I should have clarified that I didn't intend to imply a legal duty. I simply considered recklessness aligned to both 'moral issues' and 'contractual knots'.The contractual knots being those which I believe an employer ties them selves up in by having open-ended, long term provision of this 'unnecessary' and 'workforce divisive' piece of equipment.(No, on second thought, better substitute the word 'junk' for 'equipment' as equipment implies beneficial use to employer or employee)Maybe I should go out now when its dark and chop a few down and feel better?
PS I could keep the axe for those employees (contractually speaking) who smoke in a covert manner on smoke free premises.One or two contractual decapitations should show the way forward through the smokey fog of puffed up smoker's rights.
Happy halloween everyone!!
|
|
|
|
|
|
Rank: Guest
|
Posted By Tony Brunskill
Is the NHS correct in its action?
The Tax take from smoking in the UK is just over £8Bn. The cost of smoking related diseases incluing those suffered by non smokers is £2Bn. Net to the Government coffers £6Bn. Of which the NHS takes a big share.
So maybe this is just labour spin to get rid of the NHS after all.
|
|
|
|
|
|
Rank: Guest
|
Posted By Adrian Watson
Dear All,
Several quick points; Those providing a "smoking shelter" could not incur liability for the smoker getting a smoking related illness! To incur liability the smoker (or their family) would have to show that the injury (cancer etc) resulted from the provision of a shelter and not the smoking - and if a lawyer could do that I would really eat my hat! However, liability could be incurred for slips, trips and falls or for attacks when going to or from or when using the shelter.
The problem with successfully claiming damages from the tobacco companies is that you have to show that your illness was due to their tobacco product and not to tobacco products in general or to a general lung cancer risk (diesel exhaust, living, lifestyle factors), and that you didn't voluntary accept the risk. A pretty tall order, one must admit!
Furthermore COSHH, did not include passive - environmental - second hand tobacco smoke because of Regulation 2(2) until 2002. Before 2002 Regulation 2(2) stated "In these Regulations, any reference to an employee being exposed to a substance hazardous to health is a reference to the exposure of that employee to a substance hazardous to health arising out of or in connection with work which is under the control of his employer." This could not include ETS as it did not arise out or in connection with work under the control of the employer. This was changed in the 2002 Regulations to "In these Regulations, a reference to an employee being exposed to a substance hazardous to health is a reference to the exposure of that employee to a substance hazardous to health arising out of or in connection with work at the workplace." This could include ETS!
Regards Adrian Watson
|
|
|
|
|
|
You cannot post new topics in this forum.
You cannot reply to topics in this forum.
You cannot delete your posts in this forum.
You cannot edit your posts in this forum.
You cannot create polls in this forum.
You cannot vote in polls in this forum.