|
|
THE
PUBLIC HEALTH (TOBACCO) (AMENDMENT) ACT, 2004
Implications
for employers and employees
As and from the 29th March, 2004, the Public Health (Tobacco)
(Amendment) Act, 2004, ("the Act"), prohibits any
person from smoking tobacco in a place of work. A place of
work is defined under the Safety, Health and Welfare at Work
Act, 1989 as "any place, land or location at, in upon
or near which, work is carried on whether occasionally or
otherwise".
The
definition is very wide and includes places that do not immediately
come to mind, for example a vehicle used for work, irrespective
of whether the vehicle is privately owned, or owned by the
company.
There are several exceptions to the new Act but for the vast
majority of employers and employees the ban applies.
Section
47 (2) states that a person who contravenes the Act is guilty
of an offence, this includes an employee. Employers should
note Section 47(3) which provides that where a person contravenes
the Act, "the occupier, manager and any other person
for the time being in charge of the specified place concerned
shall each be guilty of an offence". An employer is therefore
guilty of an offence if an employee, customer, guest or supplier
is found guilty of an offence with fines for both of up to
€3,000.
It
is however a defence for an employer to show that it made
"all reasonable efforts" to ensure compliance with
the legislation. Employers should consider the following;-
-
Issue a policy statement to all employees notifying them
of the ban on smoking, that it is an offence under the
Act to smoke in a place of work, what fines are applicable
and what steps will be taken by the employer for breach
of the ban, e.g. initiating the company's disciplinary
procedure,
-
Display no-smoking signs in work place areas and also
in access areas to the premises e.g. reception,
-
Remove ash trays from any place of work,
-
Instruct the Personnel Manager/Safety Officer to check
places of work where employees previously smoked to ensure
compliance with the ban, and
-
Provide employees with information to encourage them to
quit smoking, such as the Irish Cancer Society Quitline
service, or the Irish Heart Foundation service.
If
an employer discovers that an employee has breached the ban,
then it should deal with the matter reasonably and proportionately.
It
would not be reasonable to dismiss an employee on the first
occasion on which they are found smoking in a place of work;
instead, the employer should initiate the company's disciplinary
procedure and give the employee a warning.
Companies
should consider amending its employee handbook or disciplinary
procedure to provide for the smoking ban, or in the alternative,
the company could circulate a policy statement providing that
smoking tobacco in the place of work constitutes misconduct
under the company's disciplinary procedure.
For further information please contact:
Laurena
Hughes
T:
+353 - 1 - 4395600
F: +353- 1 - 4395601/4395602
E: lhughes@kilroys.ie
©
Kilroys Solicitors 2004
 |
|
|
|
