Smoking

Smoking Ban

The smoking of tobacco products is prohibited in almost all places of work. It covers most indoor places of work.  Prior to the general smoking ban, there were wide-ranging bans on smoking in the workplace. The general ban on smoking in public places now includes most places of employment.  It is now more a matter of general public health protection than a matter of a workplace safety health and welfare.

The Office of Tobacco Control was established in 2002 to implement tobacco control.  The Office of Tobacco Control was dissolved on 1st January 2011, and its statutory functions previously vested in the Office were transferred to the Health Service Executive. The legislation is now enforced by the HSE.

Breach of the legislation can be prosecuted summarily in the District Court with a maximum fine of €3,000. The occupier, the manager or other person in charge of the relevant place, may be guilty of the offence.  Each of them can be prosecuted.

It is a defence for each to show that he, she or it took all reasonable efforts to ensure compliance with the legislation. The (the employer or management must have taken all reasonable steps to make sure that staff and visitors are aware of the prohibition, and take reasonable steps to prevent smoking.


Scope of Smoking Ban

The prohibition applies to places of work, vehicles or carriages in which the public are carried, health premises, hospitals, schools, colleges state buildings, cinemas, licensed premises and registered clubs.

The smoking ban applies to aircraft, trains, ships, vessels, public service vehicles. Smoking is prohibited in all public buildings belonging to or in the occupation of the Government, the Commissioners of Public Works or any body established by law.

Smoking is prohibited in hospitals and most residential healthcare facilities.  Hospital, sanatoriums, laboratories, clinics, healthcare centres are included.  There are exemptions for rooms within nursing homes, hospitals, and psychiatric institutions.  In these latter cases of residential healthcare facilities, smoking in patient’s room is effectively restricted though not prohibited.

Smoking is prohibited in most educational facilities.  This includes childcare facilities, preschools, primary and secondary schools, university and vocational facilities.  There is an exemption for rooms used solely for living accommodation.  In which case smoking is restricted.

Smoking is prohibited in shops, stores, restaurants, cultural facilities.  It is prohibited in cinemas, theatres, concert halls and places used for indoor public entertainment.  It is prohibited in bars, pubs and nightclubs, casinos. Smoking is prohibited in hotels, lodging houses.  Smoking in in a guest bedroom is restricted.


Exemptions from Smoking Ban

The legislation does not apply to

  • dwelling houses;
  • places wholly uncovered by any roof;
  • bedrooms in a hotel or equivalent accommodation;
  • nursing homes;
  • prisons;
  • psychiatric hospitals;
  • hospices.

Prisons are exempted from the smoking ban although in practice most places are designated no smoking or smoking zone.

Smoking is prohibited in outdoor places of work including outdoor areas of service, businesses covered by a fixed or immovable roof provided that not more than 50 percent of the perimeter is surrounded by one or more walls or equivalent structures;


Positive Obligations

The published guidelines provide that employers and managers must make reasonable efforts to ensure that employees and the public are aware of the prohibition on smoking.  Obligations under the legislation are imposed on the owner, manager, and every other person in charge of the place concerned.

They must also use reasonable endeavours to ensure that the ban is not breached and that any breaches are not repeated. Business owners, employees, and supervisors must remove ashtrays from premises.

Owners and managers must take steps to ensure a person does not smoke on their premises.  They must make reasonable efforts to ensure compliance with legislation.  Failure to do so constitutes an offense subject to a fine up to €3,000 fine or three months in prison or both on summary conviction.

Smokers are obliged not to smoke in smoke-free zones.  The smoker be convicted of an offence subject on summary conviction to a fine up to €3,000.


No Smoking Signs

Owners of businesses must erect non-smoking signs. A sign must be displayed, indicating the owner or occupier and the name of the person in charge, to whom a complaint may be made.  Failure to do so is an offence subject to a fine up to €3,000 fine or three months in prison or both on summary conviction.

It is mandatory to display the sign on a premise to which the public has access either as of right or with the permission of the owner a sign indicating those parts of the premises at which smoking is permitted and those in which it is not permitted.

A no-smoking sign is required in a public service vehicle.  The owner or person in charge of a public service vehicle is guilty of an offence for breach.

Business owners, employees, and supervisors must remove ashtrays from premises.


No Smoking Policy

It is recommended that a smoke-free policy be developed. The no smoking policy must be implemented. It must be communicated to employees and members of the public.  No smoking signs should be displayed The policy should acknowledge the right of employees to work in a smoke-free environment and information on how to obtain help quitting smoking..

The anti-smoking policy may be incorporated in the safety statement.  It should be provided that certain members of staff have responsibility for implementing the policy and requirement. The consequences of breach in terms of workplace discipline should be specified.

Action in relation to disciplinary procedures should be undertaken for violations of the smoke-free policy and this should be in line with the procedures used for violation of any other health and safety procedure.


Enforcement

The HSE enforces the legislation.  Its officers may enter premises at all reasonable time where they have reasonable grounds for believing any trade in connection with the manufacture, processing, disposal, importation, distribution, sales, storage, packaging or label of a tobacco product is carried, or records relating to it are kept.  It may take copies of books, records, documents et cetera.  It may remove them as may be reasonably necessary for enforcement.

The officers may carry out searches on the premises including searches of equipment and checks of tobacco products. The power also extends to physical premises, ships, cars, aircraft, and trains.  It may require persons at the premises to give assistance information together with books and records.  Samples may be taken.  It may direct tobacco products which are believed to be reasonable grounds to contravene a provision of legislation not to be sold without consent.  It may secure the premises taken or moved for analysis any tobacco product or substance in connection with its manufacture processing or storage and detain it as necessary.

An officer may not enter a dwelling house without a warrant or the consent of the owner.  An application may be made to the District Court for a warrant where there are grounds for believing that relevant materials are present. It is an offence to obstruct, interfere with or refuse to cooperate with an authorized officer.

Authorised officers may make samples of tobacco products or substances used in their manufacture, processing or storage.  Samples are to be provided in three parts.  Sent in containers and sealed.  One is to be offered to the owner a person in charge, one is to be retained, and the other is to be forwarded for analysis.


Civil Liability

There have been numerous civil claims by employees, who have suffered personal injury due to prolonged exposure to smoke.

Employees have been held liable for failures in systems of work and for diseases contracted from passive smoking.

Many passive smoking-related claims have been made by bar staff arising, from lack of adequate ventilation.


References and Sources

Irish Books

Safety, Health and Welfare and at Work Law in Ireland 2nd Ed 2008 Byrne Ch 32

Safety & Health Acts Consolidated & Annotated       2013   Byrne

Health, Safety & Welfare Law in Ireland        2012   Kinsella Ch 3

Health & Safety: Law and practice 2007 Shannon

Health & Safety at Work   1998 Stranks Ch 3

Civil Liability for Industrial Accidents 1993 While

Websites

The Health and Safety Authority  www.hsa.ie

Health and Safety Executive (UK) www.hse.gov.uk

UK Books

Tolleys Health and safety at work, 2017 29th ed Bamber,

Corporate liability: work related deaths and criminal prosecutions 3rd ed. Forlin

Health and safety at work: European and comparative perspective Ales.

Health and Safety Law 5th Ed 2005 Stranks

Principles of Health and Safety at Work (8th ed) Holt, Allan St. John; Allen, Jim;

The Law of Health and Safety at Work 2014/15 (23rd ed) Moore, Rachel; Winter, Hazel;

Statutes

Safety, Health and Welfare at Work Act 2005

Public Health (Tobacco) Act 2002

Public Health (Tobacco) (Amendment) Act 2004

Public Health (Tobacco) (Amendment) Act 2010