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#1 Posted : 22 March 2007 10:27:00(UTC)
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Posted By garyh
This is a variation of previous posts, which I have read and am still not clear on.

If an employee (doing maintenance work on a tenanted property) goes into the home of a customer who smokes, what is the situation?

Does the home then become a workplace?

If so is the householder committing an offence by lighting up?

Is any of this explicit in the reg, or implied?
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#2 Posted : 22 March 2007 10:33:00(UTC)
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Posted By Holly McDermott
Hi Gary

If you think about it the home can not be a workplace for the owner. It will be a workplace for the worker though. My opinion is that it is the employers duty to protect its workers BUT the employer can not stop home owners smoking in their own home. However, the can stop their employees working in these homes. Conclusion is clear communication between employer and homeowners. It will not be acceptable for employees to say that they do not mind if someone smokes.
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#3 Posted : 22 March 2007 10:39:00(UTC)
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Posted By Andrew Meiklejohn
I agree with gary.

I have heard some organisations ask the householder to not smoke in the home for an hour before the visit and employees have the right to refuse to work in premises that the householder is smoking in.

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#4 Posted : 22 March 2007 10:40:00(UTC)
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Posted By Andrew Meiklejohn
sorry i agree with holly :-)
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#5 Posted : 22 March 2007 11:05:00(UTC)
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Posted By J Knight
Hi Gary,

Holly is substantially right. We have a homecare arm, and what we are doing is what Andrew is suggesting; we are intending to write it into future contracts, as there is no real way of enforcing it,

John
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#6 Posted : 22 March 2007 11:26:00(UTC)
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Posted By cara
Advice taken from the supplementary guidance for the new smoking laws... really only applies where staff have to visit homes on more than one occasion.

Draw up a protocol that covers all staff and volunteers who provide services to service uses in their own homes. Provide a leaflet explaining the protocol and any risk assessment process for clients.

If possible, establish a list of homes visited which are occupied by smokers. Also note homes which employees would consider as smoky environments because of others (i.e. clients family) who may smoke in those premises.

ID any members of staff who have pre-existing condition (Asthma, chromic obstructive pulmonary disease, or cardiovascular disease)that is made worse by exposure to tobacco smoke, and those who face additional risks, i.e. because of pregnancy. Members of staff who have such conditions are at higher risk and particular care should be taken to prevent or minimise exposure to tobacco smoke.

Once the situation relating to individual properties is ascertained, steps can be taken to reduce the exposure that staff might face. E.g. write to those who will be visited and ask them not to smoke during the visit, and ideally not to smoke for an hour or so before the visit is scheduled to take place.

Ensure that no member of staff is expected to make consecutive visits, or even a sequence of visits, to a hose in which they are likely to be exposed to tobacco smoke. A good method is to alternate visits, but this should not take place of the steps detailed above.

When a staff member visits for the 1st time to a household where someone smokes, they should check that the service user understands the protocol and go through the information leaflet. It is expected that most service users will be willing to comply with the protocol. However there may be some service users who need more information, discussion and negotiation before this will happen.
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#7 Posted : 22 March 2007 11:35:00(UTC)
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Posted By garyh
Cara can you provide a link to the supplementary guidance (or email it to me).

This looks like the first sensible piece of information I have seen on this subject.

Many thanks.
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#8 Posted : 22 March 2007 11:35:00(UTC)
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Posted By Nick House
I recently spoke with a lawyer on this very subject. His opinion was that the areas in which a contractor was working should be smoke free, but the rest of the house need not. The tenants also have rights within their own demise.

I.E. the living room could be a smoking area for the tenant whilst the contractor was working on say, carrying out maintenance work in/ or installing a new kitchen.
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#9 Posted : 22 March 2007 11:38:00(UTC)
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Posted By cara
Hi Gary

Sorry I only have this in paper format - given out at a recent WAG seminar - so am unable to email. I have searched myself on the internet but am unable to find a link to it. If anyone knows the link please let us know!
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#10 Posted : 22 March 2007 11:44:00(UTC)
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Posted By Merv Newman
Go back to the previous thread(s)

Without doing that myself, I remember that "services" provided to a private dwelling were excluded from the regulations. So the gas man could service your boiler without restrictions on your smoking. (right)

But if you are a "homeworker" then the regulations would apply if a work colleague came to discuss work. But not if he/she just came for a cup of tea or a gossip about the kids.

boing

Merv
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#11 Posted : 22 March 2007 14:13:00(UTC)
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Posted By Philip McAleenan
It is always useful to go directly to the statute and see what it says. In this case the Health Act 2006; Section 3 Smoke-free premises: exemptions:

(1) The appropriate national authority may make regulations providing for specified descriptions of premises, or specified areas within specified descriptions of premises, not to be smoke-free despite section 2.
(2) Descriptions of premises which may be specified under subsection (1) include, in particular, any premises where a person has his home, or is living whether permanently or temporarily (including hotels, care homes, and prisons and other places where a person may be detained).

It is clear that only the National Authority can make this decision. In respect of NI (where the relevant legislation is The Smoking (Northern Ireland) Order 2006); guidance issued by the Department of Health, Social Services and Public Safety states,

“4.1 Private accommodation

The legislation does not require private accommodation and dwellings to be smoke-free except for those areas that are used as a place of work and communal areas, such as stairwells in apartment blocks.

The legislation does not apply to work undertaken in a private dwelling on behalf of a person living in the dwelling:

• that is carried out solely to provide personal care;
• to assist with domestic work;
• to maintain the structure or fabric of the dwelling; or
• to install, maintain, or remove any service provided for the inhabitants.

This means that, for example, there will be no legal requirement for an individual not to smoke in their own home if a tradesman, nanny, cleaner, or carer is present. In such circumstances it is recommended that the householder and the person providing the service come to an agreement, in advance of the visit, about whether, when, and where smoking may take place”.

Thus in the circumstances described in the original posting, the home is not a “smoke-free” premise and no, the householder is not committing an offence.

Regards, Philip


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#12 Posted : 22 March 2007 15:42:00(UTC)
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Posted By Alexander Falconer
There has been much debate over the last few months on this one.

This is quite a common concern, especially with those who work in the public sector.

In our case we kept it simple,

1) remove the householder from the premises whilst the work is being carried out (installation of gas central heating) and this eliminates the issue of workers being exposed to passive smoking (and the hoseholder is also removed from subsidiary hazards, ie open floorboards, hot works, etc)

2) If householder does not want to leave premises, then advise them to remain in another room (accompanied by relative, friend, neighbour) whilst works are being carried out.

3) If householder cannot provide smoke free environment, then work does not commence (letters sent out prior to installation date) - many householders are very accommodating and do not mind.

You are welcome to obtain a copy of our policy etc for reference as to how this is controlled.

Alex
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#13 Posted : 24 March 2007 20:39:00(UTC)
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Posted By David Bramall
Alex

Sounds good - could you perhaps let me have a look at your policy?

Thaks in advance.

DrB
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#14 Posted : 24 March 2007 22:28:00(UTC)
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Posted By Merv Newman
Phillip,

thank you for quoting the exact regulations (3.5 1 and 2) which I feel I had summarised quite succinctly four or five postings above.

Alex,

your policy is perfectly logical and will go a long way to assuring the health of your employees. However, in practice there could be some elements impossible to comply with and which occasionally will render installation or maintenance of the appliance impossible.

But not, I submit, for legally defensible reasons.

Tricky, innit ?

Merv
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