UK Initiatives
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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