Employers should follow the Scots' lead on vehicle smoking ban
Different laws could cause headaches
Companies should order all employees not to smoke in any work vehicle and should follow the Scottish "no smoking" sign requirements because they are the most stringent when the English smoking ban comes into force one month from today.
On 1 July all four UK nations will have anti-smoking laws in place, but businesses will face four different and often conflicting sets of laws and regulations regarding smoking. While a building only has to comply with one set of laws, vehicles could be used in all four UK nations, posing a problem for managers.
According to a leading employment lawyer, it is possible to comply with all four sets of laws by adopting as company policy the strictest laws out of the four countries. Most cars are in fact exempt in Scotland, and the law varies in the other countries on what vehicles can be exempt.
"If you are a company whereby your employees drive to each of the four jurisdictions within the UK my advice would be to introduce a policy that all company vehicles should be smoke free," said Sara Sawicki, an employment law partner at Pinsent Masons, the law firm behind OUT-LAW.COM.
"The signage that is included in the vehicle should be the international no smoking sign which should be at least 75 millimetres in diameter, which would meet the size requirement in Wales and Northern Ireland, but also to adopt the Scottish requirement as to wording," said Sawicki.
The Scottish law has no minimum size requirement for signs, but is the only law to say that there must be text along with the no smoking symbol, and that the sign must also carry the details of an owner or manager to whom complaints about smoking can be addressed.
There are a number of other differences between the laws in place across the UK. In Wales and Northern Ireland, signs must be 75 millimetres in diameter or larger. In England they only have to be 70mm across.
Signs must be visible in all vehicles used for business. Vehicles used primarily for private purposes are exempt, but business vehicles must carry no smoking signs even when they are not being used for work.
The legislation in England says that cars must be "smoke free", meaning that smoking never takes place in them. However, if only one person uses a particular car in England, the smoking ban does not apply.
The differences in national laws throw up curious potential legal problems. An employee driving a work car in Scotland could have a cigarette legally in the car and extinguish it. If that employee then drives to England he has committed no offence, but the vehicle is no longer a smoke free vehicle, which is an offence in England.
Other potential problems could arise, one company director with vehicles travelling to all four countries told OUT-LAW.COM. He said that if an employee in Scotland legally smoked in a work car there, that car would be the subject of an offence in England even if driven there purely for leisure purposes.
"A car used for work in Scotland could be liable in England even if not used for work in England," said the company director, who asked not to be identified. "That is my interpretation of it, because the law in England says that it applies to a no smoke vehicle used for work purposes, it doesn't say a vehicle used for work in England."
"The problem with these regulations is that we don't know how people will interpret those grey areas," said the director.
"The fact that you have lit a cigarette in Scotland; does that now become a smoking premises? I think it would be difficult to run that argument if somebody was stopped," said Sawicki. " But who knows? When you look into the regulations in the various different jurisdictions there are an awful lot of grey areas."
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OUT-LAW.COM is part of international law firm Pinsent Masons.
The Scottish law: Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006
The English law: The Smoke-free (Exemptions and Vehicles) Regulations 2007 and the Health Act 2006
The Welsh law: Smoke-free premises, etc (Wales) regulations 2007 (pdf)
The Northern Irish law: The Smoking (Northern Ireland) Order 2006 (pdf)