The smoking ban and company vehicles

This guide sets out a summary of the position under English law on the smoking ban, how it affects the use of company vehicles and how the laws differ in other parts of the UK.

England

Regulations relating to smoking in company vehicles came into force on 1 July 2007. The position is that:

• enclosed vehicles which one or more persons use for work will be no-smoking premises and covered by the ban. The ban applies to cars, vans and lorries at all times if they can be used by one or more persons, as driver or passenger, in the course of paid or voluntary work – regardless of whether they are in the vehicle at the same time;
• a vehicle is not used at work if it is used primarily for the private purposes of a person who owns it or has a right to use it which is not restricted to a particular journey.

This means that smoking will be prohibited in all vehicles which are used primarily for business purposes by more than one person.

For example:

• a company car used solely by one employee and not used by anyone else for work either as a driver or passenger is exempt and does not need to be smoke free;
• a privately-owned car used occasionally for business purposes is exempt;
• a car shared by one or more employees but only ever used by one at a time (a pool car) is covered by the ban and must be smoke free at all times;
• a chauffeur-driven car is covered by the ban and must be smoke free at all times;
• a van used by two employees, one who smokes and another who doesn't, is covered by the ban and must be smoke free at all times;
• a vehicle used by two-plus employees, all of whom smoke, is covered by the ban and must be smoke free at all times;
• a vehicle that would otherwise be smoke free but which has a roof that can be stowed or removed will not be required to be smoke free when the roof is completely stowed or removed

All vehicles covered by the ban should display no-smoking signs, with the no-smoking symbol at least 70mm in diameter, in each compartment of the vehicle in which people can sit. The penalty for not displaying a sign is a fixed-penalty notice of £200, reduced to £150 if paid within 15 days, or a maximum fine of £1,000 if convicted by a court.

The company has a duty to prevent smoking in smoke free vehicles. The penalty for not doing this is a maximum fine of £2,500 on conviction. Compliance requires that the company take reasonable steps, which in addition to displaying signs as above might include:

• removing ashtrays;
• introducing a smoke free policy;
• training staff to understand the new law and their responsibilities under it – individuals caught breaking the law can be issued with a fixed penalty notice of £50, reduced to £30 if paid within 15 days, or a maximum fine of £200 on conviction.

Northern Ireland

Regulations relating to smoking in company vehicles came into force on 30 April 2007. The wording relevant to vehicles is identical to that in England, therefore the law should be applied in the same way.

Wales

Regulations relating to smoking in company vehicles came into force on 2 April 2007. The wording relevant to vehicles does not materially differ to that in England, therefore the law should be applied in the same way.

Scotland

The law preventing smoking in business premises in Scotland came into force on 26 March 2006. The rules differ to the law in England in that:

• 'no smoking premises' cover vehicles, including cars, which one or more people use for work;
• 'car' is defined as any mechanically-propelled road vehicle which is not a goods vehicle or motorcycle or a vehicle not commonly used as a private vehicle and unsuitable to be used in that way (which might cover vans);
• they define 'private vehicles', which are exempt, as 'any car which is not a public transportation vehicle... and any other vehicle used primarily for private purposes'.

The guidance issued by the Scottish Executive provides that if you use a car, whether it is your own or a company car, for business purposes it will be exempt unless it is being used as a private taxi. Vans and lorries are covered if used by one or more people at work. This suggests that the exemption – that any car is exempt – overrides the prohibition, so that unlike in England all cars except private hire cars are exempt in Scotland even if used for work by more than one person. Although this may not have been the intended outcome there has not yet been a test case. The enforcers in Scotland are likely to follow the guidance and so the position would appear to be more relaxed north of the border in terms of company cars than it is in the rest of the UK.

Conclusion

The general approach to be adopted in England can be applied equally to vehicles in England and Wales, subject to variations relating to signage - see below. In Scotland, it appears that a slightly more relaxed approach can be adopted in respect of all cars, applying the law only to vans. Alternatively, a company can decide on a consistent approach and adopt the more vigorous position as it applies equally to England, Wales and Northern Ireland and apply it equally to Scotland. This approach would also avoid the problem that can arise where Scottish vehicles cross the border as a car exempt in Scotland might not be exempt in England.

Miscellaneous issues

There are also subtle differences between the four countries' requirements in respect of signs, with Scotland's being the most stringent in terms of the required wording – the others being the same.

In respect of size the English requirement is 70mm diameter, while Wales and Northern Ireland require a sign of 75mm diameter. There is no size requirement in Scotland. This means that vehicles which might travel across several borders should display a 75mm sign.