Wales TUC Response to 'Smoking in Public Places' a National Assembly for Wales Consultation
Response to the National Assembly for Wales consultation document
Consultation on Smoking in Public Places
The Wales TUC welcomes the opportunity to comment on the National Assembly for Wales’ consultation document "Smoking in Public Places". The Wales TUC represents 56 trade unions who in turn represent around half a million members across Wales.
Introduction
The Wales TUC supports initiatives to reduce smoking in public places including workplaces. We are also supportive of Wales leading the way in tackling the effects of passive smoking and placing them at the top of the public health agenda. We will also offer support to a Wales Bill that would protect the health of non-smokers in public places.
The concern from industry lobbyists is often predicated on the basis that any legal intervention is tantamount to ‘nanny state’ syndrome. This may have some basis if it were not for the fact that currently the ‘nanny state’ favours their arguments of laissez faire. It may also have some basis if there were not a string of independent polls and surveys suggesting that the public would support a ban on smoking in public. The most recent ICM poll, published on 26th October 2004, reported that about 66% of the public would support a ban including, significantly, one in three smokers and over three-quarters of non-smokers.
From the outset, the key definition that the Wales TUC is concerned about is that public places are invariably workplaces. The National Assembly for Wales has devolved responsibilities for public health. With the potential for a Wales Bill to give the Assembly powers over smoking in public places, we believe that this is a unique opportunity for the Assembly to be proactive in improving the health of Wales. We also believe that removing the effects of smoking in ‘social workplaces’ will help reduce the prevalence of younger people becoming addicted to smoking in the first place.
Unions have a central role to play in reducing smoking at work. The TUC is co-ordinating a Europe-wide project that aims to protect workers from passive smoking. The SmokeAtWork project is focused primarily on the workers most at risk from second hand smoke - those working in pubs, clubs and restaurants. The aim is to develop practical tools for union representatives - such as a website and training materials - to help them to negotiate smoking policies at work.
According to SmokeAtWork, the biggest area of concern is amongst workers who work in the leisure and hospitality trade. Their exposure to environmental tobacco smoke (ETS) is high as they are exposed to second hand smoke from clients and customers. It is estimated that around 3 million people in the UK are exposed to ETS. Across the EU this figure rises to around 30 million. Workers in the leisure industry, who are most affected by workplace smoke, make up around 5 to 10% of this figure.
Trade union representatives work to provide a safe and healthy working environment for their workers. This usually means trying to eliminate or reduce the risk from hazards in the workplace and providing for the welfare of people at work.
They are supported by the Health and Safety at Work Act 1974 which imposes a general duty, albeit where reasonably practicable, for employers to ensure the health, safety and welfare at work of all their employees and to provide a safe working environment.
As we will outline, being exposed to ETS can be deadly and deeply unpleasant. Employees are also placed in the invidious position of having to trade their job with their health in a way that would be unacceptable for most other workplace hazards.
However, this response is not an attack on smokers. It is about protecting, completely, the health, safety and welfare of non-smokers. We will argue that a responsible smoking policy, where the workforce and their representatives are consulted can deliver solutions for smokers such as contained rooms with ventilation that does not exhaust into non-smoking areas.
Simply stopping all smoking, immediately, does run the risk of driving smoking underground which is why a well negotiated, well consulted on smoking policy which is monitored and with cessation provision built in, is more likely to work and achieve buy-in from the workforce, clients and customers alike.
The major barrier to the protection of workers is the smoking lobby, which uses dubious science and surveys to convince governments of its case. People, especially those who work in pubs, bars, clubs and restaurants need protecting and the voluntary charter backed by the tobacco industry does nothing to save the lives of thousands of workers at risk every day from passive smoking.
1. The Health Risks
Passive smoking is increasingly recognised as a workplace hazard and a threat to people's welfare. Many countries now consider ETS a carcinogen or cancer-causing agent. The World Health Organisation and the UN's International Agency for Research into Cancer have also declared ETS as carcinogenic.
Many scientific reports state that passive smoking is a cause of heart disease and lung cancer in exposed adults. According to the Health and Safety Authority (HSA) in Ireland, "there is compelling evidence that working with smoking co-workers increases the risk of lung cancer by 20-30% in non smokers".
There is also general agreement that ETS causes respiratory disease in adults. Again, the HSA in Ireland states that the risk of heart disease increases by 25-35% if working with smoking co-workers. Most health agencies consider that exposure of pregnant women to ETS causes lower birth weight in their babies.
ASH (Action on Smoking and Health) has calculated that each year in the UK, about 600 lung cancer deaths and up to 12,000 cases of heart disease in non-smokers can be attributed to passive smoking.
For people with asthma, ETS can cause serious health problems and cigarette smoke is a common trigger of asthma attacks. Scientists from the Finnish Institute of Occupational Health in Helsinki say that they have produced the first hard evidence to prove that passive smoking does play a role in the development of adult asthma.
A report from University College London measured the levels of exposure to passive smoking amongst London's non-smoking bar workers. It states that bar workers take in amounts of environmental tobacco smoke over 10 times higher than the average non-smoker. The Irish trade union representing bar workers estimates that 150 bar workers die in Ireland each year from ill health caused by exposure to second hand smoke. Further research from Norway states that waiters and barkeepers have a significantly higher risk of developing lung cancer compared to other occupations. (SmokeAtWork)
2. Economic Impact
Independent research from across the world leads to the fact that a ban on smoking in public places can increase revenue.
The TUC backed Health and Safety magazine, Hazards investigation, ‘Smoke screen’, looked at a new analysis of 97 smoking studies carried out in eight countries in May 2004. The investigation suggested that the most rigorous and independent studies find that bans have had no negative impact on the profits of pubs, clubs, and eateries. The same analysis reveals that all existing studies pointing to negative impacts on trade worldwide, are funded by sources in some way related to the tobacco industry.
Looking at the UK, Hazards revealed that three independent pieces of research could find no evidence of any negative impact from smoking bans already in existence in pubs and bars. For example, a study from Newcastle University revealed that a quarter of the businesses surveyed reported a boost in trade, and 58 per cent of pubs questioned said takings were up.
In April 2004, the VicHealth Centre for Tobacco Control in Melbourne, Australia attempted to locate all studies in the English language that purported to predict or assess the economic impact of smoke free policies in the hospitality industry. This study reported that;
'No negative economic impact from the introduction of smoke-free policies in restaurant and bars is indicated by the 21 studies where findings are based on an objective measure such as taxable sales receipts, where data points several years before and after the introduction of smoke-free policies were examined, where changes in economic conditions are appropriately controlled for, and where appropriate statistical tests are used to control for underlying trends and fluctuations in data. Just a few studies using objective measures have found negative effects. Each of these is methodologically flawed.'
'Studies concluding a negative economic impact have predominantly based findings on outcomes predicted before introduction of policies, or on subjective impressions or estimates of changes rather than actual, objective, verified or audited data. These studies were funded predominantly by the tobacco industry or organisations allied with the tobacco industry. Almost none of the studies finding a negative impact are published in peer-reviewed journals.'
The full report is available at:
http://www.vctc.org.au/tc-res/Hospitalitysummary.pdf
3. The Impact on reducing the Prevalence of Smoking
According to ASH, it has been estimated that a comprehensive workplace smoking ban in England might reduce smoking prevalence by around 4 percentage points.
According to Cancer Research UK, a law to ban smoking in public places could also save more lives more quickly than the development of a single new anti-cancer drug. Professor Alex Markham, the charity's chief executive, says the single most important contribution to tackling cancer in the next decade is legislation to stub out smoking in pubs, restaurants and other enclosed workplaces. Prof Markham’s report, ‘The cancer challenge: agenda for change’ argues that second-hand smoke is a real concern. He believes a single piece of legislation would be the most effective thing Government could do to save lives when compared with the time and money it takes to develop a first class drug. The report also argues that such a ban would not only protect workers in the hospitality industry but would also encourage people who smoke in pubs and clubs to stop smoking.
4. The Effectiveness of Extractor Fans
The Wales TUC believes that ETS cannot be controlled by ventilation, extraction units or by positioning non-smokers away from smokers.
A recent US study by James Repace Msc, in the Journal of Occupational & Environmental Medicine. 46(9):887-905, September 2004, enquired ‘how the concentrations of indoor air pollutants known to increase risk of respiratory disease, cancer, heart disease, and stroke change after a smoke-free workplace law? Real-time measurements were made of respirable particle (RSP) air pollution and particulate polycyclic aromatic hydrocarbons (PPAH), in a casino, six bars, and a pool hall before and after a smoking ban. Second-hand smoke contributed 90% to 95% of the RSP air pollution during smoking, and 85% to 95% of the carcinogenic PPAH, greatly exceeding levels of these contaminants encountered on major truck highways and polluted city streets. This air-quality survey demonstrates conclusively that the health of hospitality workers and patrons is endangered by tobacco smoke pollution. Smoke-free workplace laws eliminate that hazard and provide health protection impossible to achieve through ventilation or air cleaning’. (The American College of Occupational and Environmental Medicine)
5. Human Rights
Under Section 2 of the Health and Safety at Work Act 1974 employers must protect the health of employees and provide a healthy and safe working environment. Under the Control of Substances Hazardous to Health Regulations 1994 employers must ensure that wherever possible employees are not exposed to hazardous substances.
With today’s level of awareness on passive smoking it would be difficult for any employer to argue that they are not in breach of these duties by not prohibiting smoking at work in all areas except for specifically designated places where non-smokers have no reason to enter.
Regulation 25(3) of the Workplace Health, Safety and Welfare Regulations 1992 requires that rest rooms and rest areas have suitable arrangements to protect non-smokers from the discomfort of tobacco smoke, such as separate rest facilities or the prohibition of smoking at these places.
Case law also requires employers to provide a safe workplace, so they may be sued for negligence where exposure to passive smoke damages the health of employees. Two UNISON members with permanent damage to their health due to smoky offices with inadequate ventilation received substantial compensation from their employer.
In 1993 Veronica Bland received £15,000 from Stockport Metropolitan Borough Council. She suffered years of passive smoking at work and eventually developed chronic bronchitis. In 1995 Beryl Roe received £25,000 compensation from Stockport Council. She had to retire on ill-health grounds after suffering eye, nose, throat, and bronchial hypersensitivity which returns if she goes into a smoky atmosphere. The council had increased her exposure by shutting down the ventilation system in her office.
It is therefore not only in the interests of non-smokers, but also in the interests of employers to provide an adequate no smoking policy. However this does not mean simply imposing a blanket ban without any consultation, which is least likely to work.
Any policy must take into account the need of all employees. The HSE states that in some situations a complete ban may be justified for safety reasons, but the imposition of such elsewhere without proper consultation can lead to resentment and enforcement problems.
In Dryden v Greater Glasgow Health Board 1992, after extensive consultations with and three months notice to all employees the employer revised its no smoking policy to ban smoking anywhere on its premises. Previously smoking had been permitted in a 'smoking' coffee room and in a part of the canteen. Counselling and support was offered to those wishing to give up. Ms Dryden found that time constraints meant that it was difficult for her to leave the premises in order to smoke. She therefore resigned and claimed constructive dismissal.
It was decided that the right to smoke was a personal habit and not an implied contractual term and therefore she did not have the right to smoke at work. It is however important to note that one factor in reaching this decision was that the issue of a smoking ban had been handled as sympathetically as possible and with full consultation.
6. Enforcement
The Wales TUC believes that the best and most effective way to provide and enforce smoke-free workplaces is through a good smoking policy that has undergone full consultation with trade unions and which fits within a safe and healthy working environment. We would propose the following approach.
· Consultation with safety representatives over the introduction and content of such policies - since this is also a health and safety issue there is a right to consultation. The HSE recognises that full in-depth consultation with employees and their representatives is highly desirable for the smooth implementation of smoking policies
· Sensible no smoking policies - an employer recently attempted to increase the working week for employees who took smoking breaks by requiring them to work an extra half hour each day. Directly attacking employees conditions of services is not a helpful approach and is one which Wales TUC would oppose
· Smoke free work areas with good ventilation
· Non-smoking rest rooms
· Where appropriate, decent and well ventilated smoking rooms - with a separate ventilation system so that smoke is not re-circulated into the rest of the building
· Help for smokers who wish to stop smoking - this could include paid time off and the cost of attending sessions which help smokers to give up, and payments for nicotine patches.
A smoke free work environment will support those trying to give up, provide cleaner air for everybody, and help employers to avoid liability.
What Makes A Good No Smoking Policy?
A no smoking policy has to be carefully drawn up and introduced in order to ensure that it works.
1. A clear, strong commitment to health promotion: The policy should be about improving health in general rather than just bringing in action to limit smoking. The policy should seek to protect or promote the health of both the smoker and the non-smoker.
Full support and encouragement should be offered to smokers who want to stop smoking and those that feel they are unable to. Help to smokers should include a health education programme, with time off and fees paid if necessary to attend courses on giving up smoking. Payment for Nicotine patches and gum could also be provided.
Consideration should also be given to the wider issues which may be encouraging workplace smoking such as stress and high workloads. The HSE recognises that stress at work can lead people to smoke more.
2. Negotiation in consultation with a union: Policies that are imposed without consultation and with no provision for smokers are less likely to succeed.
3. Tailoring the policy to the needs of the particular workplace: People in Wales work in a wide variety of workplaces, with varying degrees of contact with customers, clients and colleagues. Some work shifts or nights. There is no blueprint for a successful policy. Account must be taken of local circumstances and the particular characteristics of the work and workplace.
4. Make provisions for smokers: Separate smoking areas rather than a complete ban, which could alienate smokers and lead to activities such as smoking in toilets. It must be recognised that smoking is an addiction and most smokers would find it very difficult to give up smoking at work.
5. Providing information: Information about the issues should be provided to workers whilst the policy is being drawn up and implemented.
6. Setting up a working party: A working party based on partnership involving management and worker representatives should involve smokers, non-smokers and ex-smokers.
7. Timescale for implementation: It is important that a policy is not drawn up in a rush and imposed by management without full consultation. Time will need to be taken to get the policy right and ensure the majority of workers are happy with it. There should be at least a twelve week time gap between the policy being finalised and it coming into force.
8. Covering everyone: A policy should cover everyone - staff and management, customers and clients.
9. Making everyone aware of the policy: There must be procedures for making everyone aware of the policy, including clients, visitors and customers.
10. Monitoring the policy: The policy must be monitored and reviewed to ensure it is working effectively, to make changes if necessary and to ensure that any problems or complaints are picked up and dealt with fairly.
References
TUC: www.tuc.org.uk
Hazards www.hazards.org
Smoke At Work www.smokeatwork.org
UNISON www.unison.org.uk
ASH: www.ash.org.uk
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