Smoking ban laws leave some grey areas

With the smoking ban about to be phased in across the UK, there is still a lack of clarity on some issues

With the Smoke-Free (Premises and Enforcement) Regulations having already come into force in Wales last month, and due to take effect in England on 1 July, some details about how the ban will affect company cars are still unclear. Under the new legislation, it will be a criminal offence for anyone to smoke in enclosed or partially-enclosed premises used as a workplace. This includes company cars, such as pool cars or others which are used to transport employees or customers on business, if they are used to carry more than one person at any time.

Alison Love, partner and head of the employment and HR services group at Hugh James Solicitors, which is based in Wales, said: “It is very hard to envisage a situation where that is not going to happen.”

In such cars, employers must display no smoking signs which measure from the outer edge of the red circle at least 75mm in diameter in Wales and 70mm in England and can be seen from all compartments of the vehicle. If they fail to comply with the legislation, both the employee and employer are potentially liable to incur fines. Employers face higher penalties, which are currently set at £1,000 for failing to display no smoking signs and £2,500 for failing to prevent smoking in a vehicle.

Company-owned cars that are only used by one employee for business and private purposes are unlikely to be covered by the laws.

Doubts have, however, arisen around the ease of policing the regulations. Difficulties could arise where staff are only likely to carry a colleague or customer on a handful of occasions over a long period.

Furthermore, differing start dates between England and Wales have given rise to conflicts in opinion regarding company cars that travel across borders. For example, there is confusion over whether staff working for an employer based in England but who regularly travel into Wales on business, should comply with the Welsh ban. Mike Waters, head of market insight and planning at Arval, said that English employers will only be liable once the law comes into force in England but he is uncertain about where a Welsh employer would stand if their staff are driving in England. But, Richard Schooling, commercial director at Alphabet, claims the ban does apply to staff based at a workplace in England who drive in Wales, but admitted the legislation is vague.

Privately-owned cars are exempt from the legislation if they are primarily used for private purposes (over 50% of the time), even if they are used to carry more than one person during business journeys. But Schooling explained that this presents difficulties in terms of measuring business mileage ratios.

Waters concludes that employers should err on the side of caution. “There are some grey areas at the moment that won’t really be defined until there’s some case law and some prosecution,” he added.