Posted By Avecia Hi, I am sorry if you cannot help with this query but I am trying to find out information on the new ban on smoking and how it affects care workers. If a care worker has to go into a residential home which is exempt from the new law and they feel they are putting themselves at risk from passive smoking do they have the right to say to their employer they refuse to continue to work on those particular premises. I understand the care worker can ask but not tell someone to stop smoking when in their own home but if they refuse to not smoke whilst the care worker is in there can they say to their employer that they feel they are at risk from the effects of passive smoking and ask to be moved? This is a query in relation to a friend of mine who was on call and called to go out to a person he did not normally take care of and was placed in this situation as mentioned above and I am just enquiring what my friends rights would actually be in this situation. I look forward to hearing from you.

Posted By Avecia Yes it is a private home. The smoking policy introduced by the care provider does not specifically mention the right of refusal to work in such premises. And the policy does not mention disciplinary procedures for refusing in these circumstances to work, only for people who flout the policy by smoking in a persons home (the policy was supposedly drawn up by a lawyer but these omissions from it seem to lead me to believe a lawyer was not consulted in drawin up this policy!). thank you for your response, I will have a look to see if there has been any case law from ET's since the ban came in.

Posted By Avecia Indeed that is true that there have not been any cases come to tribunal and services seem to have continued as normal, but that is not to say that there are not many people like my friend who are concerned for their health, particularly where there are council workers doing the same job who seem to have this right of refusal to work in such conditions but because my friend works for a private company doing work given to them by the council (kind of like out sourced care) he doesn't seem to have the same rights. The nature of the job does obviously require needs to be met, and care must continue, but the problem seems to be getting the company concerned to change their policy regarding this issue and having procedures in place where a worker does refuse to work in such conditions then he is not at risk of disciplinary action and the service user is allocated another carer. I agree this is unlikely to be solved properly without any proper case law and it would be best to go to his trade union. You never know, perhaps if he does take it further it may be the first case to test the new legislation in this way! I doubt it would go that far though. Kind Thanks though for your help.

Posted By J Knight Hi Joe, Avecia, We are a Charity rather than an LA, and as I said we take the view that we can't force anybody into a smokey environment. I agree that at the moment there is no clear guidance from anybody that says we can't, but we are aware of the impact on our workers if we compel them into enter an area where they report distress, and we are also mindful of future litigation etc. Yes, the care has to be delivered, but I think there has to be some sort of balance between the service user's rights and obligations, and this should be made clear at contract. I think a TU view would be instructive, John