ASH warns employers, including pubs & restaurants: the law requires you to protect staff from passive smoking

Monday 10 November 1997

ASH/ Press releases/


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Press release10 November 1997 ASH
Action on Smoking
and Health

10 November 1997

ASH warns employers, including pubs and restaurants: the law requires you to protectstaff from passive smoking

ASH today publishes legal advice showing that employers who fail to stop passivesmoking in the workplace are breaking the law. Following new research which showsconclusively that passive smoking is a serious health hazard[1], ASH commissioned legaladvice from John Melville Williams QC. Melville Williams concludes that, without anychange in the law, the new facts mean that every employer, including those in thehospitality industry, is effectively now legally obliged to provide employees with asmoke-free workplace.

This isn’t just about offices” said Clive Bates, Director ofASH, “restaurants and bars are workplaces for waiters and bar staff, and thelegislation applies here with just as much force as in an office or factory,“[see notes 3, 4 and 5 for more on pubs and restaurants].

Mr John Melville Williams concludes that knowledge of the dangers of passive smoking issuch that no employer can now use ignorance or uncertainty as an excuse for not takingaction to reduce the hazard. The Opinion states that under the Health and Safety at WorkAct (1974) and COSHH Regulations [2] an employer has a duty to “ensure that theexposure of his employees to substances hazardous to health is either prevented or ..adequately controlled.”

Melville Williams states that individual employees at particular risk, for example ifthey are asthmatic or have an existing heart condition, could seek a court injunctionagainst an employer who fails to prevent their exposure to tobacco smoke in the workplace.The legal opinion also shows that from now on it will be easier to sue an employer fordamage to health arising where tobacco smoke has been one contributing factor.

Bates added : “People have the right to work without breathing cigarette smokeand this shows they now have the law firmly behind them. Society at large is beginning torecognise that non-smokers don’t have to just put up with it or feel guilty forcomplaining“.

This legal obligation to protect employees could create a new de factosmoke-free public places policy without the Government needing new legislation. ASH iscalling for an urgent and transparent review of the weak and ambiguous HSE guidelines onsmoking in the workplace; inclusion of this legal advice in the tobacco White Paper; andlisting of tobacco smoke in the schedules to the COSHH regulations.

ASH Passive smoking legal opinion: Page 2 of 2



Notes to editors

[1] Two reports in the British Medical Journal demonstrated that non-smokersexperiencing sustained exposure to tobacco smoke had a 25% increased risk of heart diseaseand lung cancer. BMJ 1997; 315: 973-80 & 980-88. 18 October 1997. It concludes:

“The effect of exposure to environmental tobacco smoke is not trivial, as is often thought. It is a serious environmental hazard and one that is easily avoided. The evidence on ischaemic heart disease warrant s further action in preventing smoking in public buildings and enclosed working environments.”

[2] Regulation 7 of the Control of Substances Hazardous to Health Regulations. TheHealth and Safety at Work Act (1974) states that employers have a duty “to provideand maintain a safe working environment which is, so far as reasonably practicable, safe,without risks to health and adequate as regards facilities and arrangement for theirwelfare at work.” The Control of Substances Hazardous to Health (COSHH) Regulationsinclude a list of substances that are established as being hazardous to health. Currentlythese do not include tobacco smoke and ASH is calling for tobacco smoke to be listed.

[3] Research based on tax return data published in California on 4 November showed thatthere had been no adverse economic impact on trade in bars and restaurants following a banon smoking in California. At the time ASH commented: “It looks as though non-smokerswho were previously driven away by the clouds of cigarette smoke come in to replace anysmokers that decide to stay at home.”

[4] London-based restaurant designer Anand Zenz (Eco in Clapham, Belgo in Camden,Casale Franco in Islington ) intends to open a non-smoking bar as his next project and iscurrently looking for a financial backer. According to Zenz: “More than two-thirds ofadults are non-smokers and more than two-thirds of smokers say they want to stop. By myreckoning that means eight out of every nine adults are potential customers for asmoke-free bar. It seems to have worked in the States and I am convinced it will workhere”.

[5] Alan Yau, owner of Wagamama, one of the most successful and fashionable restaurantsin London, is committed to a smoke-free policy: “We think people want to eat anddrink without breathing fumes that are toxic and irritating. Wagamama is always packed andwith queues to get in, so I don’t think you can argue that a smoking ban puts peopleoff.”

[6] The legal opinion (12 pages) and a letter (2 pages) summarising the case to AngelaEagle MP , the responsible Minister at the DETR are available from ASH.

Contact Clive Bates, Director (020) 7739 5902
Amanda Sandford, Communications Director (020) 7739 5902
Anand Zenz, restaurant designer 0171 793 9598
Alan Yau, owner of Wagamama 0171 734 4001

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