General Duties
All workers are entitled to work in an environment where the risks to their health and safety are properly controlled. Employers have a common law responsibility to provide a safe place and system of work. This duty extends not just to employees – it also covers agency staff, volunteers etc. As well as these general duties, Section 2 of the Health and Safety at Work Act 1974 obliges employers to ensure, so far as reasonably practicable, the health, safety and welfare at work of all of their employees.

This means that if a risk to health can be demonstrated, for example an actor with a respiratory condition is forced to work in a very smoky atmosphere on stage, the employer must take action to deal with the risk. In some situations, a complete ban on smoking may be justified for safety reasons, for example backstage where there is a risk of fire or explosion.

A specific written policy on smoking in the workplace should be adopted. The policy should give priority to the needs of non-smokers who do not wish to breathe tobacco smoke. When adopting any policy, an employer will need to take care not to infringe employment rights.

Specific Legislation

Health Act 2006
The Health Act 2006 contains wider provisions – banning all smoking in all indoor public or shared work places, including theatres and private members’ clubs. Smoking could be banned at certain outdoor locations that are ‘substantially enclosed’, such as football grounds and railway platforms. Some open air venues could be considered substantially enclosed.

The Act states this includes all “lit” substances, not just tobacco, so herbal cigarettes will also be banned under the new legislation.

Employers, managers and those in control of no-smoking premises will be required to take reasonable measures to ensure that staff, customers and visitors are aware of the new law and that they do not smoke. This will entail the display of no-smoking notices so that they are clearly visible to all employees, customers and visitors while in the premises, including at each entrance, in the toilet facilities and staff rooms; developing and implementing smoke-free policies; removing all ashtrays from premises and, where appropriate, providing external stubbing bins at entrances.

Those in control of no-smoking premises could be liable to a fixed penalty fine of £200 if they do not take reasonable action to prevent someone smoking on the premises, or if they do not provide adequate No Smoking signs. Individuals who smoke in no-smoking premises will be liable to a fixed penalty fine of £50. Failure to comply with the law will be taken into account in licensing decisions under the new licensing regime.

Some exceptions exist, including for actors whilst performing:

“For the purpose of making provision for those participating as performers in a performance, or in a performance of a specified description, not to be prevented from smoking if the artistic integrity of the performance makes it appropriate for them to smoke”

The exemption will apply in England, but not Wales or Scotland (or Northern Ireland, after a u-turn). Beware when on tour!

Although there is a wide power for the Secretary of State to exclude other premises from the effects of this Act, no other exemptions can be made for premises operating under a premises licence or club premises certificate.

These regulations came into effect:

• Scotland – March 2006
• Wales – April 2, 2007

• England – July 1, 2007

On stage smoke effects Some effects – such as dry ice – are allowed, subject to the standard risk assessments. The HSE Entertainment Sheet No 3 (Smoke and Vapour Effects used in Entertainment) is a very useful summary. However, it was last revised in 1996, and consideration should be given to the changes in technology and best industry practice since then. Curiously, no mention is made in the guidance sheet about cigarettes and cigars (although other fire safety guidance is given elsewhere). Therefore special consideration should be given to any request that an actor should “light up” on stage, and all alternatives considered. Given the Scottish position from 2006, it may become best industry practice to avoid all stage smoking throughout the UK. For on stage alternatives to smoking, try, for example, the fake cigarettes and cigars from http://www.sillyjokes.co.uk/ Legislation Health and Safety at Work Act 1974 Smoking, Health and Social Care (Scotland) Act 2005. Health Act 2006 Links http://www.hse.gov.uk/