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BMA response to the UK Health and Safety Executive's Proposal for an Approved Code of Practice on Passive Smoking at Work

27 October 1999

Mr Stuart Bristow
Health and Safety Executive
Health Directorate, Division A
7th Floor, North Wing, Rose Court
2 Southwark Bridge
London SE1 9HS

Dear Mr Bristow

Thank you for your correspondence requesting comments on the above Consultative Document. The British Medical Association has pleasure in enclosing its response to the points raised.

We congratulate the Executive on this valuable document and warmly welcome the proposal to introduce an Advisory Code of Practise to protect workers from passive smoking in the workplace.

However, while the proposed measures go some way to addressing this problem, we feel that they are not a wholly adequate response to the proven health risks of passive smoking. In particular, we feel that a sound code of practice must give due weight to the validity and the strength of scientific knowledge of the harmful effects of passive smoking.

The success of an Advisory Code of Practise will depend on its clarity, on proactive review procedures, on effective enforcement, and on the provision of redress. We urge the Executive to ensure that the final code of practise provides clear guidance on these matters to help employers fulfil their duties to protect workers' health from the very real dangers of passive smoking.

The BMA is grateful for the opportunity to take part in this process and remains at your disposal for any further assistance.

Yours sincerely,

M J Lowe
Deputy Secretary

Responses to questions posed in the consultation document

1. Do you think that we should take further action to make sure that all employers introduce smoking policies designed to ensure their employees' health and welfare at work?

Yes. Approximately one in five workplaces does not have an effective policy to safeguard employees' health from passive smoking, and more than 3 million people are exposed to second-hand smoke at work. Given the well-established health risks of passive smoking, employers have a duty to act to protect their workers' health. We agree that further action is needed to ensure that employers comply with their duty in this respect.

2. Should we issue an Approved Code of Practice (ACoP) on passive smoking?

Yes. Existing legislation under the Health and Safety Act 1974 provides the legal framework required; however, clear guidelines on compliance are needed. Given the nature of the health risks involved, voluntary guidance is inappropriate, as it does not carry sufficient weight. An Advisory Code of Practise setting out clear and authoritative guidance on compliance with standards of worker protection would be welcome. However, the success of any such code will depend to a large extent on the clarity of guidance, in particular, with regards to enforcement and redress.

3. If not, what other action should we take and why?

We agree that a code should be introduced. However, should an ACoP prove ineffective in protecting workers from exposure to second-hand smoke, further legislative action will become necessary.

4. Do you agree that an ACoP on passive smoking should mainly focus on giving guidance about how employers should reduce their employees' exposure to tobacco smoke to ensure their welfare?

No. While recognising that exposure to tobacco smoke in the workplace is detrimental to workers' welfare, we strongly dissent from the view that protection from passive smoking is primarily a matter of welfare rather than health. The distinction drawn in the consultation document between irritation and health effects seems somewhat artificial. While certain effects of exposure to tobacco smoke, such as running eyes and nose and sore throat, may indeed be relatively minor, they are nevertheless real health effects. In addition, other consequences of passive smoking, such as a reduction in lung function, may not immediately be obvious to either workers or employers. Nevertheless, there is evidence that establishment of smoke-free workplaces has a beneficial effects on these health problems [1]. Moreover, exposure to levels of tobacco smoke that may result in minor health effects in one individual may precipitate more severe effects in another person - for example, an asthma attack. The assertion that worker protection is primarily a matter of welfare not health is in line neither with expert scientific opinion, nor with the experience of many workers involuntarily exposed to tobacco smoke.

5. If you answered 'no' to question 4, what guidance do you think we should give in an ACoP on passive smoking?

Please give reasons for your answer. For more than a decade, convincing scientific evidence has been available to demonstrate that exposure to second-hand cigarette smoke both harms health, and worsens existing health problems. Among these are studies of the effects of passive smoking in the workplace. A series of expert scientific reports has assessed and evaluated the studies available, and concluded that passive smoking harms health. The recent report of the UK Scientific Committee on Tobacco or Health again confirms these conclusions, stating that 'Wherever possible, smoking should not be allowed in the work place' [2].

While recognising the increased risk of adverse effects in those with certain conditions, such as asthma sufferers and pregnant women, we feel that the guidance offered by the ACoP must be aimed at ensuring the health and welfare of all employees.

6. Do you agree that, if there is a conflict between the welfare needs of employees who smoke and employees who do not smoke, employers' smoking policies should give priority to the needs of non-smokers?

Given that passive smoking harms health, the responsibility of the employer to protect workers from exposure to second-hand smoke is clear. Active smoking in the workplace is the source of this hazardous substance. While recognising that the addictive nature of smoking means that employees who smoke may suffer inconvenience as the result of a clean air policy, we feel that employers must give priority to reducing involuntary exposure to tobacco smoke. Nevertheless, employers could also be given guidance on how best to introduce clean air policies, including voluntary smoking cessation programmes for employees who want to quit.

How do you think employers should judge the detriment to employee welfare from tobacco smoke? Is there anything else employers should consider other than the physical symptoms it causes and the smell?

The emphasis of an ACoP should be on the protection of employees' health and welfare. Judgements that rely on actual detriment to workers are unacceptable: the balance must be towards protection against a proven health hazard, rather than assessment of the harms induced by exposure. Employers should judge the potential detriment to employee health and welfare on the basis of the level of exposure to second-hand smoke. The level of smoke present in the environment could be used as an indicator of the level of risk to health, and norms and standards developed for various types of working environment.

7. Are the draft ACoP's provisions about assessment of the risk to health from environmental tobacco smoke for employees who suffer from a pre-existing health problem workable? If not, what alternative would you suggest?

In the absence of any rational basis for identifying individuals as immune from the harms of passive smoking, we feel that protective measures must be extended to all. Nevertheless, we support the provision of effective measures to ensure that the needs of particularly sensitive groups receive special attention. The proposed provisions place an unnecessary burden on the employer to carry out an assessment for each employee who requests such protection. This seems unnecessarily intrusive and complicated. We would suggest a system in which employers set out clearly the measures they will take should an employee request improved protection.

8. In paragraph 67 of the draft guidance to accompany the ACoP, we suggest that currently, it may not be reasonably practicable to ban smoking in some workplaces. Do you agree with our suggestions for workplaces where a complete ban on smoking may currently not be reasonably practicable? If not, which others would you add or which would you delete? What further guidance could we give on this subject?

While the distinction drawn between workplaces described in paragraphs 66 and 67 is valid overall, employers should be encouraged to consider protecting their employees' health by banning or restricting smoking by clients in certain workplaces described in paragraph 67. In particular, the decision as to what is reasonably practicable should take into consideration both precedent and changing norms: for example, non-smoking policies have successfully been introduced in certain public houses, cafés and hotels, and the provision of non-smoking facilities has grown enormously over recent years.

9. Are the rest of the proposals in the draft ACoP workable? How could they be improved?

Protection of health. A sound ACoP must be based on recognition of the expert scientific consensus that passive smoking harms health. Listings of especially sensitive groups should include people with existing cardiovascular [3] or cerebrovascular [4] disease. In addition, pregnant women should be entitled to special protection: the SCOTH report draws attention to 'the dangers of ETS in foetal development' [5], and the Independent Scientific Committee on Smoking and Health recommended that during pregnancy, women should 'avoid as practicably as possible exposure to other people's smoke' [6]. Appropriate sources of health information include health authorities and groups. The campaign group FOREST is neither an independent nor an authoritative source in this respect.

Monitoring, enforcement and redress. Clear guidance on the monitoring, enforcement and mechanism by which redress can be sought should be included. Monitoring should be proactive, rather than reactive, and would be facilitated by the introduction, wherever possible, of objective measures. For example, consideration should be given to establishing standards for levels of tobacco smoke in various types of workplace. Ventilation rates required should be specified. Guidance should include the obligation to take appropriate action to inform staff and clients of the policy, including clear signage. The code should specify the enforcement measures that may be taken against non-compliant employers. Advice should also be provided on establishing mechanism by which staff can seek redress if they feel their employer is not complying with the code.

10. The commission would welcome comments on the assumptions made in compiling the draft Regulatory Impact Assessment and on its conclusions.

The assumptions made in this document place insufficient weight on the proven health effects of passive smoking. Costs of the health effects of passive smoking and of the welfare benefits of clean air policies are therefore likely to be considerably underestimated. In the hospitality industry, synergy with the implementation of the Public Places Charter will deliver costs savings in this area. Experience shows that investments in implementing such measures are also likely to be offset by business benefits, owing to improved consumer choice.

11. In your view, how well does this Consultative Document represent the different policy issues involved in this matter.

Very well.

12. Is there anything you particularly liked or disliked about this consultation exercise?

We congratulate the Executive on this valuable document and warmly welcome the proposal to introduce an Advisory Code of Practise to protect workers from passive smoking in the workplace.

References

1. Eisner M, Smith A, Blanc P. Bartenders' respiratory health after establishment of smoke-free bars and taverns. JAMA 1998;280(22):1909-1914.

2. UK Department of Health. Report of the Scientific Committee on Tobacco and Health. London: Her Majesty's Stationery Office, 1998. p. 101.

3. Law MR, Morris JK, Wald NJ. Environmental tobacco smoke and ischaemic heart disease: an evaluation of the evidence. BMJ 1997;315:973-79.

4. Bonita R, Duncan J, Truelson T, Jackson RT, Beaglehole R. Passive smoking as well as active smoking increases the risk of acute stroke. Tobacco Control 1999;8(2):156-160.

5. UK Department of Health. Report of the Scientific Committee on Tobacco and Health. London: Her Majesty's Stationery Office, 1998. p. 10.

6. Independent Scientific Committee on Smoking and Health: Fourth Report. London: Her Majesty's Stationery Office, 1988.

  
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