Thompsons advicefinal

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The Health Act is due to come into force in Summer 2007. It will require virtually all
workplaces and enclosed public places to be smokefree. But existing law is also relevant to
the issue of whether to allow smoking at work, and employers and workers should be aware
of its implications for workplaces that continue to allow smoking from now until smokefree
legislation comes into effect.

This paper therefore gives an overview of the current legal position relating to employment
law and health and safety legislation, in order to demonstrate what can be done to exclude
secondhand smoke (SHS) from workplaces etc. prior to the implementation of the smokefree
provisions of the Health Act.

The Health and Safety at Work Act 1974

The Health and Safety at Work Act 1974 (the 1974 Act) imposes a general duty on employers
to their employees and provides that:

‘It shall be the duty of every employer to ensure, so far as reasonable practicable, the health,
safety and welfare at work of all his employees.’

Section 2(2)(e) of the 1974 Act places a specific duty on the employer in respect of

 ‘to provide and maintain a safe working environment which is, so far as is reasonably
practicable, safe, without risks to health and adequate as regards facilities and arrangements
for their welfare at work.’

The key factor in personal injury claims under the 1974 Act is not whether the employer in fact
knew about the risks of particular substances or practices in the work place, but whether they
ought to have known in the light of knowledge available at that time. This is the concept of
‘guilty knowledge’. In 1998 ASH obtained a legal opinion from John Melville Williams QC
which suggests that the date of guilty knowledge in respect of SHS would be likely to be held
by the Courts to be some time in the early 1990s.

However, it is not always easy to pursue guilty employers through the courts, principally
because of the difficulty in establishing that a claimant has suffered an injury that can be
proved to have been caused by workplace exposure to SHS. This leads me to consider what
can done to prevent an individual’s exposure to SHS in the first place, with particular
reference to employment law and health and safety legislation.

It is arguable that Section 2(2)(e) of the 1974 Act is a term implied at law into every contract
of employment, requiring the employer to provide and monitor, so far as is reasonably
practicable, a working environment which is reasonably suitable for the employee to do
her/his work. Most employees would perhaps be reluctant to take such a draconian step as
pursuing a claim for constructive dismissal against their employers based on a breach of such
an implied term, but there is precedent which supports this approach.

In the leading case of Waltons & Morse –v- Dorrington (1997) IRLR 488, the employment
appeals tribunal (EAT), asked to consider the claim of constructive dismissal by Jill
Dorrington, a secretary who had repeatedly complained about her exposure to SHS in the
solicitor’s office in which she worked, held that:

‘It is an implied term of every contract of employment that the employer will provide and
maintain a working environment which is reasonably tolerable to all employees. It is such an
obvious requirement that a party to an employment contract, were they to address their minds
to the point, would assume that such must have been intended to be the case. Such a term
must apply to such matters as noise levels, smells and the quality of air which employees
breathe; not to the same standard as may be expected of a Cotswold meadow ion summer,
but to the standard which is reasonable bearing in mind the nature of the employer’s business
and its location. In this case, it is the standard reasonably to be expected of office premises in
central London’.

The EAT rejected the Respondent’s appeal and held that:

‘It seems to us that a good starting point for the implication of a term of the sort that the
tribunal had in mind is Section 2 of the Health and Safety at Work Act 1974. It is to be
stressed that this case was not concerned with health and safety, in the sense that there was
no evidence before the industrial tribunal that being exposed to tobacco smoke is in fact
injurious to the health of those who have to endure it.

 On the other hand, s2(2)(e) of the 1974 Act is concerned with the employer’s duty to provide
and maintain a working environment for his employees that is reasonably safe, without risk to
health, and is adequate as regards facilities and arrangements for their welfare at work. In
one sense, the right of an employee not to be required to sit in a smoke-filled atmosphere
affects the welfare of employees at work, even if it is not something which is concerned with
their health or can be proved to be a risk to health.’

As the case did not turn on whether or not SHS was hazardous to health, the EAT had to
concentrate on Jill Dorrington’s “welfare” at work. On this basis it was found that the correct
implied term to deal with the complaint was that the employer should have provided and
monitored for employees, so far as was reasonably practicable, a working environment which
was reasonably suitable for the performance by them of their contractual duties.

A less drastic alternative to a claim for constructive dismissal might be an application to an
employment tribunal, under Section 11 of the Employment Rights Act 1996, to obtain a
decision as to whether or not there is an implied term in her/his contract of employment
relating to Section 2(2)(e) of the 1974 Act. It might also be possible to seek injunctive relief on
behalf of an employee or group of employees seeking to argue that there was in fact such an
implied term and a continuing breach of it.

Another way to exclude SHS from the workplace would involve placing reliance on health and
safety legislation.

The Control of Substances Hazardous to Health Regulations 1999

The Control of Substances Hazardous to Health Regulations 1999 (COSHH) define a
substance hazardous to health as:

       A substance listed is dangerous for supply within the meaning of the Chemicals
        (Hazard Information and Packaging for Supply) Regulations 1994;
       A substance for which the Health Safety Commission had approved a maximum
        exposure limit or an occupational exposure standard;
       A biological agent;
       Dust of any kind, unless already listed under i or ii when present at or above a
        specified concentration; or
       A substance, not being a substance mentioned above, which creates a hazard to the
        health of any person which is comparable with the hazards created by substances
        mentioned above.

The various Schedules to COSHH list substances which are inherently hazardous, including
carcinogens, and provide maximum exposure limits. Remarkably, these lists do not include
SHS, although SHS contains over 4,000 chemicals, some of which have marked irritant
properties and some 60 unknown or suspected carcinogens (cancer causing substances).
Despite there being no particular reference to SHS in COSHH there is a clear legal argument
that SHS is a substance falling within the catchall definition in paragraph v. above.

COSHH also provides that an employer must not carry out any work which exposes
employees to hazardous substances without first making a risk assessment for the risks to
health, and considering how exposure to hazardous substances can be prevented. In the
case of carcinogens subject to the approved Code of Practice a COSHH assessment should
take into account adverse effects on health which can occur many years after exposure.

Where a substance is hazardous, the employer must ensure that exposure to it by inhalation,
ingestion, skin contact etc is either prevented or controlled. Where reasonably practicable,
exposure should be prevented and only if that is not possible, controlled. In the case of SHS,
exposure is preventable in that total bans can be placed on smoking at any location and
particularly any confined space where exposure to SHS is likely to be most harmful.

Injunctive relief could also be sought under the terms of COSHH. This route may be
preferable to the personal injury litigation route as discussed in the ASH/ Thompsons leaflet:
‘secondhand smoker?’ published in January 2005, certainly as regards an attempt to exclude
SHS from the workplace in that:

COSHH is intended to operate not only for the protection of workers but also for the protection
of others who may be endangered by the substance in question (the definition would include
the general public) – thus, members of the public exposed to SHS in public place such as a
pub, club, restaurant or casino could seek to rely on COSHH in this context.

Under COSHH the burden of proof is on the employer to show that SHS is not a hazardous
substance and given the medical evidence it is difficult to see how any employer would be
able to do that. COSHH benefits all workers who object to a smoky environment and not just
those who can show particular damage or risk of damage (as mentioned above, establishing
medical causation in SHS based personal injury claims is enormously hard). It is not
necessary to wait until harm has actually been done before seeking injunctive relief.

The Management Health and Safety at Work Regulations 1999

The Management Health and Safety at Work Regulations 1999 (MHSW) might also be of
assistance when seeking to exclude SHS from the workplace. MHSW places a duty on
employers as follows:

       To make ‘assessment of risk’ for the health and safety of their employees, and to act
        upon risks they identify, so as to reduce them;
       To appoint competent persons to oversee workplace health and safety;
       To provide employees with information and training on occupational health and
       To operate a written health and safety policy.

Under Schedule 1 of MHSW the employer’s duty is to avoid risks altogether if possible. If not,
risks should be combated at source, with priority given to measures that protect everyone in
the work place and therefore provide the greatest possible benefit. It could be argued,
therefore, that given the evidence about SHS, where smoking is not already banned, SHS
should be included in any risk assessment. Appropriate measures would then have to be
taken to deal with the risk of such measures including an effective smoking policy.

Where women of child bearing age appear in the workforce, employers must ensure that any
risk assessment takes into account any hazard that might effect the health and safety of a
pregnant woman or her baby. Pregnant women exposed to SHS at work should also ask for a
risk assessment to address this particular issue.

All employees should actively consider joining a trade union so that they can assistance in the
complex matters listed in this short overview of employment law and health and safety
legislation, as well as in pursuing claims for personal injuries in the event that they have
suffered the effects of exposure to SHS at work.

John Hall
Thompsons Solicitors

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