Contents
Editorial
Migrant workers in the leisure industry
‘I’ll tell you when I’ve had enough’ – An investigation in to the potential liability of
pubs and bars for 3rd party criminal acts
Slips in the workplace
Falling for Volenti?
Smoking ban: are you covered?
Editorial
Welcome to the fourth edition of Leisure Legal. Of course the major change affecting the industry
since our last edition, has been the introduction of the smoking ban which took effect on 1 July 2007.
Data obtained by Local Government Analysis and Research (LGAR), commissioned by the
Department of Health, suggests the industry has taken the change largely in its stride. The LGAR
report dated September 2007 indicates 98.7% compliance nationally in terms of no-smoking (defined
as no evidence of management knowingly permitting smoking) and 88.2% compliance in terms of
signage.
Similarly, on 1 October 2007 it became illegal to sell tobacco products to anyone under the age of 18
in England & Wales which has imposed further signage and staff training requirements on those in
the industry who sell tobacco products.
We have yet to see how these developments might extend civil liability for the activities of nonemployees. In this issue we look at the related trend for social responsibility in the retail of alcohol
and whether the civil law in England & Wales might be used to pass the burden of responsibility for
drunken behaviour to licensees and it will be interesting to see the effects of a recent move by a
national chain which has imposed a ‘two drink’ rule for people with children.
Another interesting development since our last edition is the weakening of the reasonably practicable
defence provided by Workplace (Health & Safety) Regulations 1992 to claims of strict liability under
the Regulations that a floor is not suitable for purpose if it becomes slippery due to a temporary
spillage. The consequences of the Court of Appeal decision in Ellis v Bristol City Council is reviewed
in this issue.
This edition also explores recent decisions affecting the industry so far as the application of the
Volenti doctrine is concerned. Consideration is given to the circumstances in which it can be said
that an individual has given consent to the risk of injury when participating in inherently dangerous
leisure activities.
Andrew Hibbert
Senior partner, BLM Southampton
Migrant workers in the leisure industry
The media regularly reports on the influx of migrant workers to the UK. The real statistics are
impossible to measure precisely but the DWP reports that in 2005/06, 3.6 million people of working
age in the UK were born overseas and in the same year, 662,000 overseas nationals registered for
National Insurance.
The leisure industry is an attractive one for migrant workers. Low skilled work in this sector often has
a high staff turnover which means that work is readily available. For the employer there is the benefit
of an enthusiastic, hardworking and often relatively cheap labour force.
However, employers of migrant workers face considerable difficulties. Often English language skills
are poor, there are cultural differences and poor communication which makes the workers and their
employers vulnerable to health and safety issues. The potential for exploitation of such workers is
clearly demonstrated by the tragic death of the Chinese cockle pickers in Morecambe Bay.
In 2006 increasing concern about migrant workers led to the HSE publishing research after
conducting interviews with 200 migrant workers. Of those workers a significant percentage worked in
hotels or restaurants, as cleaners or in food processing or packaging. They found that most had little
or no job specific training or health and safety training.
In addition, and worryingly for an industry involved in food handling and contact with the public,
workers tended to under report illness and work when they were sick. It was recorded that one in
four workers had either had an accident themselves or witnessed a migrant co-worker having an
accident, a figure which is higher than that experienced by UK nationals. Workers reported that they
were concerned about reporting accidents for fear that they would be dismissed as a result.
The main motivation for working in the UK is to earn as much money as possible in a short space of
time and return home. This clearly has health and safety implications for employers as many migrant
workers work in excess of 60 hours a week and do not take minimum holiday and leave entitlement
(under the Working Time Regulations 1998).
Workers also receive relatively low wages. In some instances, this was below the national minimum
wage quite possibly because the workers were unaware of their rights, feared dismissal or were
without proper authorisation to work in the UK. Poor language skills were often hidden from
employers, which meant that often they did not understand the information that they were being
given. High levels of discrimination and racism were also reported.
A similar survey which was carried out in the same year by the Working Lives Research Institute
considered ethnic minority workers in the leisure and catering industry and reached very similar
conclusions regarding long hours, lack of knowledge regarding legislation designed to protect
employees, low pay and underreporting of accidents.
How can the leisure industry address the problems facing them when they employ migrant workers?
Eligibility to work
The starting point for employers is to ensure that the potential employee is eligible to work in the UK.
It is illegal to knowingly employ a person who does not have the right to work and if an employer fails
to check documentation it could be deemed to have that knowledge. If an employee has restricted
rights of employment it is essential that any restrictions are recorded and monitored. For example,
dates that a working visa expires must be noted to ensure the worker is not employed beyond that
date. If a migrant worker's job is changed, checks must be made to ensure that work continues
within the terms of the authority granted.
Language barriers
With regard to health and safety, language is the first barrier. Employers should make sure that all
employees can understand basic English and if they have any concerns about language difficulties,
should ensure that all health and safety information or instruction documentation is translated.
Employees may hide their language problems so the employer needs to make sure that the
individual employee has understood. In the HSE research, it was found that use of visual aids to
explain safety issues was well received.
There is a government funded language course (English Language for Speakers of Other
Languages) available for migrant workers where employers have concerns over their employees'
ability to understand. Evidence that employees have successfully completed this course may assist
in defending claims.
Training
Full training should be given, even for what may be considered to be relatively basic tasks as the
workers may not have encountered the type of equipment or tools previously. There may also be
considerable differences in basic health and safety requirements between the UK and the migrant
workers’ countries of origin.
PPE
The HSE found that migrant workers who were often asked to provide their own protective clothing
failed or could not afford to do so. Employers need to ensure that all workers (not just migrant
workers) are issued with and properly trained in the use of protective clothing or equipment. There
may be a conflict between traditional or religious dress and health and safety clothing and employers
will need to find ways of resolving this to ensure that employees are safe.
Agency workers
As many migrant workers are employed via agencies and listed as self employed, employers may
feel they do not have any responsibility for the safety of those workers. However, every employer
has a duty to protect the health and safety of any employee and if the employer is aware that the
person may be ignorant of health and safety rules, the onus on the company is even greater.
Not only do migrant workers pose a risk of health and safety to themselves and fellow workers but
also to members of the public. Any organisation which has failed to ensure that migrant workers fully
understood health and safety regulations is likely to be in breach of duty if an accident occurs.
Accident reporting
As discussed above, employment of migrant workers may also lead to considerable underreporting
of accidents. Migrant workers are unlikely to record near misses or advise their employer if they are
concerned about a potential accident for fear of dismissal. A lack of access to sick pay also means
that migrant workers are less likely to report an injury or will continue to work whilst injured. Migrant
workers may also be unaware of the requirement to report incidents unless they received specific
training to do so. This results in hazardous situations.
As part of the health and safety training it should be emphasised that all accidents or near misses
must be reported and made clear that the employee will not be subjected to a detriment if they do so.
Working hours
The Acas funded research highlights that there are risks to an employer if employees are unaware of
Working Time Regulation and holiday or leave entitlements. If a migrant worker's hours are in excess
of the Working Time Regulations but they have not signed a waiver (or understood what the waiver
means and what their rights are), this can lead to an employment claim against the organisation.
Working long hours can also give rise to increased accidents as a result of tiredness which makes it
more likely that an employer would be liable if an accident occurs to either the migrant worker or a
third party.
Although migrant workers may be keen to work long hours to earn more money, a responsible
employer should ensure that those hours are not excessive.
Discrimination
Higher levels of bullying and abuse reported by migrant workers can give rise to increased levels of
sickness absence and potential claims for discrimination. It is therefore important that equal
opportunity policies are explained and enforced and that migrant workers are encouraged to report
any incidents.
Conclusion
The message to companies employing migrant workers is to ensure that health and safety
information is passed on and understood, that the migrant workers rights are explained to them and
that the need for reporting problems without fear of recrimination is emphasised. Failure to do so will
lead to increased claims and premiums.
Vanessa Latham
Partner, BLM London
‘I’ll tell you when I’ve had enough’ – An investigation in to the potential liability of
pubs and bars for 3rd party criminal acts
The trend for social responsibility in the retail of alcohol is becoming increasingly evident, with drinks
manufacturers encouraging customers to ‘drink responsibly’ as recently demonstrated by a national
chain’s ‘two drinks’ policy for people with children and many pubs abandoning offers, such as ‘happy
hour’ drinking.
According to AON’s ‘Vine to Wine’ report of June 2007, if this trend is extrapolated, it is possible that
pub owners and operators may become liable should their customer commit a tort or a crime after
having become intoxicated.
The current law in England and Wales
At present, English civil law conveys no liability on a pub operator in respect of injuries to customers
when they leave the premises, or injuries inflicted on third parties by customers, as a result of being
drunk.
Part 7 of the Licensing Act 2003, establishes the offences of ‘allowing disorderly conduct on licensed
premises’ and ‘sale of alcohol to a person who is drunk’. Furthermore, changes to the Licensing Act
in June 2007, sanctioned fines of £10,000 and a three month closure for serving underage
customers.
It should be noted that these offences are infringements of the license only and do not relate to the
civil law. In addition, they only concern the customer’s behaviour whilst on the premises and do not
allow a third party right of action against the licensee. Notwithstanding this, they indicate a
willingness of the government to introduce harsher penalties against licensees in order to reduce
irresponsible drinking.
The law in the US and Canada
In British Columbia, Canada, the ‘Occupiers’ Liability Act’ contains a duty on the licensee to protect
patrons and third parties from harm that ‘may be associated with the activity of consuming alcohol’.
The duty is not restricted to refusing service to intoxicated people and controlling their behaviour
whilst on the premises, but extends to ensuring that they are safe when leaving the premises.
The case of McWilliams v Steveston Hotel, May 2006, involved a claimant who became ‘grossly
intoxicated’ at the defendant’s premises in June 1999. He was permitted to continue consuming
alcohol whilst in the bar and then drive home in his car. Whilst driving, the claimant collided with five
pedestrians causing catastrophic injuries.
The court held that the hotel was 50% liable for the injuries suffered by the pedestrians, on the basis
that it had a legal responsibility to find a taxi for the claimant.
In addition, in the US, the ‘Dram Shop Act’ (which applies in all but three states), allows a direct
course of action by which victims of assaults by ‘visually intoxicated individuals’, can bring
proceedings against the licensee who served the assailant.
Could England adopt the North American model?
Whilst it is unusual for English Civil Law to be used to enforce social policy, a report by the Institute
of Alcohol Studies, commissioned in 2003, suggests that ‘the civil law, properly used, can be a more
effective way of enforcing legal rules than the criminal law’. It suggests that, because the burden of
proof for civil cases is lower and alcohol related crimes tend to be ‘low priority’ investigations for the
police, the US and Canadian law could assist in reducing irresponsible drinking.
However, we must question whether the duty of a licensee under the Canadian system is too
onerous. In a busy bar, a bartender might not be able to identify an intoxicated person. What would
the position be if the intoxicated person had become intoxicated in a number of bars? Would liability
be apportioned between each or would the last bar be liable? Perhaps more importantly, by
implementing such a strict duty on licensees, are we not eroding the customer’s duty to take
responsibility for his or her own actions and thereby exacerbating the perceived ‘compensation
culture’? One problem is that alcohol related injuries cost the NHS £millions each year and if
licensees were made to pay for the injuries, this figure could be reduced.
Can we avoid the North American system?
Arguably, if the licensed trade implements its own policy on reducing the number of alcohol related
incidents, there will be no need for government legislation. The Canadian alcohol awareness service,
‘go2’ has released a responsible beverage service program, called ‘Serving it Right’ to facilitate a
reduction in the number of incidents. The program highlights the need for staff training, encouraging
bar staff to be vigilant for physical signs of drunkenness and monitoring patron drink intake.
However, there is no guarantee that any such system will be implemented by all staff and in fact, the
Steveston Hotel had Serving it Right certification at the time of Mr McWilliams’ incident.
Conclusion
Whilst there are sanctions in English civil and criminal law against licensees in respect of intoxicated
patrons, they do not yet go as far as Canadian and US law. It is potentially attractive to the
government to pass the burden of responsibility for drunken behaviour on to licensees for financial
and enforcement reasons. However, such action is likely to only encourage compensation claims
and increase insurance premiums. The more the licensed trade can do of its own volition to
ameliorate anti-social drinking, the better. However, a close eye will need to be kept on these types
of cases to ascertain whether the civil law will move more towards the North American model.
Matthew Ford
Associate, BLM London
Slips in the workplace
Slipping and tripping is one of the most common causes of injuries in UK workplaces. Last year
alone they resulted in almost 11,000 major injuries, 36% of the total of major injuries.
The hospitality service, primarily personal service operatives, accounts for a significant number of
these injuries.
The legal framework
Regulation 12 of the Workplace (Health & Safety) Regulations 1992, sets out the employer’s duties
in respect of the condition of floors and traffic routes in the workplace. This provides:
1
2
a
b
3
Every floor in a workplace and surface of every traffic route in a workplace shall be of a
construction such that the floor or surface of the traffic route is suitable for the purpose for
which it is used.
… the requirements in that paragraph shall include requirements that:
The floor, or surface of the traffic route, shall have no hole or slope, or be uneven or slippery
so as, in each case, to expose any person to a risk to his health or safety; and
Every such floor shall have effective means of drainage where necessary.
So far as is reasonable practicable, every floor in a workplace and the surface of every traffic
route in workplace shall be kept free from obstructions and from any article or substance
which may cause a person to slip, trip or fall.
Regulations 12(1) and (2) place a strict liability upon an employer following a failure to comply with
the requirements to provide a suitable work surface or traffic route.
Regulation 12(3) enables the defendant to escape liability if they can show that they had reasonable
precautions in place to prevent the substance from getting there and once it is there, to remove it.
When considering accidents in workplaces such as pubs, restaurants and cafes, it has been the
case that if an employee slips as a result of a substance being on the floor which is transitory in
nature the defendant can escape liability if they are able to establish that there was system of
inspection and cleaning in place.
Susan Ellis v Bristol City Council (2007)
This recently decided case has cast doubt upon the strength of the reasonably practicable defence
provided by Regulation 12(3).
In this case, the claimant was employed as a care assistant in a care home for the elderly and
mentally infirm run by Bristol City Council. In October 2002, the claimant was injured when she
slipped in a pool of urine left by one of the residents on the main corridor. Many of the residents at
the care home suffered from incontinence and therefore this was a regular hazard which could
happen several times a week. Should staff members come across urine on the floor, they were
required to clean it up themselves or call for a cleaner. There had been a history of falls.
The claimant argued under Regulations 12(1) and (2) that the floor was not suitable for the purpose
for which it was used as it became slippery when wet as residents urinated on it frequently. The
judge at first instance did not accept this. Regulation 12(1) relates to the construction of the floor
surface and not a transient hazard. As it was a transient hazard the defendant was able to establish
the defence under Regulation 12(3) and the claimant’s case failed.
The Court of Appeal (CA) did not agree with the judge at first instance and rather than determine that
all transient slipping hazards were to be considered under Regulation 12(3) it was accepted that
Regulations 12(1) and (2) are intended to cover permanent features of the floor and also regularly
and frequently occurring hazardous conditions, of which a slipping hazard is an example. Regulation
12(3) is intended to cover transitory conditions which occur less frequently.
The CA therefore accepted that if a smooth floor is frequently and regularly slippery because of a
substance which lies upon it, albeit only temporarily, the surface of the floor may properly be said to
be unsuitable. It was determined that the floor was dangerous when wet and as this occurred
frequently and regularly, it could not be avoided; the floor was found to be unsuitable for the
purposes for which staff used it. Staff could not be expected at all times to concentrate on the
possible presence of urine.
Impact of the decision L S v Bristol City Council upon the leisure sector
Bars, clubs, restaurants and cafes are all frequently faced with hazards caused by spillages of food
and drink on traffic routes. Following the Ellis case, if the injured employee is able to establish that
the spillages are of sufficient frequency and regularity, they may be able to claim that the employer is
strictly liable under Regulation 12(1).
There were no clear guidelines set down in Ellis to help determine when a transient hazard occurs
with sufficient regularity to be dealt with under Regulations 12(1) and (2) as opposed to reasonable
and practicable condition set out in Regulation 12(3). Should an employer within the leisure sector
own a bar, restaurant or cafe and staff are mopping up spillages on a frequent basis throughout the
day and night, then this case will cause some concerns. It will be vital for the establishment to
consider the following:





The construction of the floor, including nature and quality of the surface.
Assess the purposes for which the floor is used and the circumstances of the use.
Assess the frequency and regularity with which the intermittent conditions occur.
Assess the likelihood of an accident occurring.
Assess the possible gravity of any injury which may occur, including the history of all
accidents and complaints as well as the gravity of injuries. It should be considered that as
staff will be carrying glasses, plates, trays and that when they are in a hurry and under
pressure, it will not be always easy to see hazards despite warning signs.
Paragraph 93 of the Approved Code of Practice published by the Health and Safety
Commission Pursuant to Section 16 of the Health & Safety at Work 1974 advises in relation to
Regulation 12:
Surfaces of floors and traffic routes which are likely to get wet or to be subject to spillages should be
of a type which does not become unduly slippery. A slip resistant coating should be applied where
necessary.
Whilst it is important to maintain a good system of inspection and cleaning it should also be
understood that this will not guarantee a successful defence under Regulation 12(3) (if the floor
becomes particularly slippery when there are substances upon it so there is a clear risk that the floor
will be found to be unsuitable and that liability will be found against the employer.) Risk assessments
and good housekeeping continue to be of the utmost importance.
James Harvey
Partner, BLM Birmingham
Falling for Volenti?
The maxim volenti non fit injuria (to the willing, no injury is done) prevents someone who knowingly
and willingly puts themselves in an obviously dangerous situation from suing for his or her resulting
injuries, on the basis that he or she has effectively consented to run the risk.
The British Mountaineering Council (BMC) was set up in 1944 to promote the interests and protect
the freedoms of climbers, hill walkers and mountaineers. It has published what is known as the BMC
participation statement, which encapsulates the Volenti doctrine. This statement reads:
The BMC recognises that climbing and mountaineering are activities with a danger of personal injury
or death. Participants in these activities should be aware of and accept these risks and be
responsible for their own actions and involvement.
Mr Justice Dyson was faced with a Volenti defence based upon the BMC participation statement at
the Royal Courts of Justice on 20 June 1997 in Woodroffe-Hedley v Cuthbertson (1997). Whilst
acting as a mountain guide for Gerald Hedley on the icy North face of Tour Ronde in the French Alps
in 1990, Dave Cuthbertson had to make a routine decision as to whether to set up a belay (rope
anchor) with one ice screw or two. He decided to use just one to save time. Shortly afterwards, a
large sheet of ice came away from beneath him, resulting in a fall that ripped out the belay, injuring
him and causing Hedley to fall to his death. This tragedy led to a claim for negligence against
Cuthbertson on behalf of Mr Hedley’s infant child. Mr Justice Dyson accepted that anyone who
climbs is, as a matter of law, treated as consenting to the ordinary dangers of mountain climbing but
that where he climbs with a guide, it is the duty of the guide to minimise the danger to his client of
injury or death. In this case, he found that there was a breach of that duty by failing to use two ice
screws.
Mr Justice Dyson’s decision illustrates just how out of favour Volenti defences had become. In fact,
by five years later, Lord Justice Sedley in Tomlinson v Congleton Borough Council and Cheshire
County Council (2002) in the Court of Appeal was prepared to go so far as to state that ... ‘it is only
where the risk is so obvious that the occupier can safely assume that nobody will take it that there
will be no liability.’ Volenti appeared as redundant as the language from which it is derived.
The rehabilitation of the Volenti defence can probably be traced back to Tomlinson in the House of
Lords (reported at [2003] UKHL 47). Lord Hoffman expressly disapproved Sedley LJ’s statement,
going on to say that:
The question of whether people should accept responsibility for the risks they choose to run ... was
central to this appeal. Mr Tomlinson was freely and voluntarily undertaking an activity which
inherently involved some risk ... I think it will be extremely rare for an occupier of land to be under a
duty to prevent people from taking risks which are inherent in the activities they freely choose to
undertake upon the land. If people want to climb mountains, go hang gliding or swim or dive in ponds
or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such
activities ... but the law does not require him to do so.
My Lords, as will be clear from what I have just said, I think that there is an important question of
freedom at stake. It is unjust that the harmless recreation of responsible parents and children with
buckets and spades on the beaches should be prohibited in order to comply with what is thought to
be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The
fact that such people take no notice of warnings cannot create a duty to take other steps to protect
them ... a duty to protect against obvious risks or self-inflicted harm exists only in cases in which
there is no genuine and informed choice, as in the case of employees, or some lack of capacity,
such as the inability of children to recognise danger ... or the despair of prisoners which may lead
them to inflict injury on themselves.’
These words, the enactment of section 1 of the Compensation Act in July last year (see LeisureLegal
2, March 2006) and the recent application of the Volenti doctrine in respect of activities such as ice
skating (West v Telford & Wrekin Borough Council [2006] 11 CL 346) and ‘tubing’ on an artificial ski
slope (Collins v SnowDome [2006] 11 CL 347) perhaps make the recent decision in Poppleton v
Trustees of the Portsmouth Youth Activities Committee [2007] EWHC 1567 (QB) even more
surprising.
In 2002, Mr Poppleton, then aged 25, attended an activity centre run by the defendant to participate
in an activity known as ‘bouldering’. This involves climbing on purpose built climbing walls without
ropes at levels of no more than five metres above the ground. Mr Poppleton’s evidence was that he
was a novice in this sport and that he had no prior knowledge of the BMC participation statement.
The climbing room at the centre had wall to wall safety matting, 300 millimetres thick. No criticism
was made of the matting, which was found to be adequate according to both BMC and Health &
Safety Executive guidance.
While attempting to leap from one wall to another (described by His Honour Judge Foster as a
‘foolhardy, dangerous and risky’ manoeuvre), Mr Poppleton fell head first, sustaining a spinal injury
that left him paralysed from the neck down.
One would have thought that the risk of falling was the most blatant of risks in these circumstances,
even for a novice. Not so, according to the judge. He found that there was a duty to warn Mr
Poppleton of ‘any specific dangers which might not be known to him and might be hidden from him’
and that the defendant had failed to ensure that Mr Poppleton was not ‘misled’ into believing that the
matting would save him from injury. The defendant was therefore held liable, subject to 75%
contributory negligence.
Lord Hoffman might be surprised to see the judge justifying his decision with the following words:
It is similar to the swimmer who attends a swimming pool without being informed of the limited depth
of the pool, and then diving in (a normal activity at swimming pools) and suffering spinal injuries as a
result. He would have been misled and would have dived in the mistaken belief that it was safe to do
so. This is different from the situation as in Tomlinson where the claimant dived into a natural lake.
The decision in Poppleton probably warrants reconsideration by the Court of Appeal.
Simon Morrow
Partner, BLM Manchester
Smoking ban: are you covered?
On 1 July 2007, England followed the rest of the UK by banning smoking in all workplaces. This
meant that for the first time ever, bars, pubs and clubs became smoke free, as up and down the
country shivering smokers huddled in beer gardens.
For the leisure industry this was a significant piece of legislation with implications for business
owners, both in their role as a service provider and as an employer.
With the ban comes an extensive set of new regulations. Put simply, under the new law it is no
longer legal to allow smoking in any premises in which people work or to which members of the
public have access. The concept of the smoking room has now been consigned to history, with pubs
and clubs now obliged to ensure that their smokers vacate the premises when they wish to smoke.
However, it is not just such obvious premises as pubs and clubs which will be covered by the new
law. Under the new regulations, it will be illegal to smoke in any premises with a ceiling, unless more
than 50% of the 'wall' area is open to the outside. This means that structures such as shelters,
doorways and even temporary structures such as marquees could all be included by the ban.
One area of the leisure industry which may be exempt from the general rule is the hotel room. It is,
nonetheless, subject to stringent rules. In order for a hotel to permit their guests to smoke in their
room, the room must be designated as a smoking room in writing and clearly marked as such,
completely enclosed (excluding doors and windows), with no shared ventilation except with other
designated rooms, and with any doors onto smoke-free areas being self closing. However, all
communal areas of the hotel and rooms which are not designated as smoking rooms must remain
smoke free.
The legislation even goes as far as to ban smoking in some company vehicles. Whilst vehicles which
are only used by one person will remain unaffected, those vehicles which are used by more than one
person will be affected by the smoking ban. Perhaps amusingly, the only shared company vehicles
which are not affected by the new law are convertibles, where smoking is permitted as long as the
roof is open. Despite this, many companies may feel that it is easier to impose a blanket ban as this
distinction could make the new law rules almost impossible to enforce.
The penalties for failing to enforce the new legislation are severe. An employer will be liable to a
fixed penalty of £200 for failing to display an appropriate 'No Smoking' sign, although this could be
discounted to £150 if payment is made within 15 days. However, if the fine is unpaid or challenged a
fine of up to £1000 and a criminal record can be levied. The regulations extend to cover the size of
the 'No Smoking' signs and the message which is displayed: to comply with the legislation, at least
one sign per premises must be of at least A5 size with the 'No Smoking' logo (the dimensions of
which are set out in the regulations) and bear the wording 'No Smoking. It is against the law to
smoke in these premises'. There are some exceptions whereby smaller signs may be used although
the basic design of the notice must remain as described. Signs which are compliant with the
legislation can be downloaded or ordered from the website www.smokefreeengland.co.uk and must
be displayed in both buildings and within company cars, although some differences in format are
allowed for signs used in vehicles. Any penalty will be levied against whoever occupies the building
or vehicle or who has responsibility for managing the building or vehicles.
Furthermore, any employee or guest to a site, who is caught smoking illegally, can be issued with a
£50 fine, discounted to £30 for early payment. Again, non-payment or challenging the fine will bring
the risk of a criminal record and an increased fine of up to £200.
Finally, employers must also take reasonable steps to prevent smoking in their workplace or they
may be liable to a fine of up to £2500 with no fixed penalty alternative. Quite what constitutes
'reasonable steps' is unclear, but simply displaying the appropriate no smoking signage will not be
enough. Employers should ensure that a no smoking policy is clearly set out and communicated to
all employees and new starters through employee handbooks and induction programmes. Further,
all guests to a site should be reminded that they must not smoke whilst in the premises. The
consequences of non-compliance should be considered, and it would certainly be wise for
disciplinary policies to include smoking in prohibited areas amongst any list of behaviours likely to
attract a disciplinary sanction. It is recommended that someone within the company should be
appointed to ensure that the ban is properly implemented throughout the workplace; often this will fall
within the remit of those responsible for health and safety. Clearly employers have only limited
control over behaviour away from the workplace and as such cannot force employees to consider
quitting. However, companies may wish to make information available to employees concerning
sources of help should any employee wish to give up smoking altogether.
One of the stated aims of the legislation was to reduce the amount of illness and number of deaths
attributable to smoking but in respect of smokers and those inhaling second hand smoke, how
effective this will be in the long term remains to be seen. For now it seems that Britain's workplaces
will need to clean up their acts.
Alexandra Clements
Partner, BLM Leeds
O:\1 PUBLICATIONS IN PROGRESS\LEISURE LEGAL_1107_688\LEISURE LEGAL 4 WORD DOC.DOC