The Public Health (Tobacco) (Amendent) 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 April 2004