Smoking Ban Exemptions

Scotland became the first country in the UK to introduce the smoking ban in March 2006. All the remaining countries which in UK all now have the same or very similar legislation in place with regards to the smoking ban. There are some places which are exempt however.

Although any exemptions to the smoking ban are highly likely to be the same, or very similar to, those which apply to England, all of the information contained within this article comes from guidance set out under English law which came into force on July 1, 2007. Therefore, it may be worth checking other legislation which applies to Scotland, Ireland and Wales which may differ in some way just to make sure you know your rights.

What are the Smoking Ban Exemptions?

There are certain designated places which, under the normal conditions of the smoking ban, it would not be permissible to smoke but where the government have made some exceptions. These include:

  • Mental health units.
  • Residential care / nursing homes.
  • Adult hospices.
  • Designated rooms in hotels.

However, even within these kinds of enclosed establishments there are still strict rules surrounding where you are permitted to smoke. For example, in a nursing home or hospice the smoking exemption extends only to residents and their guests and must be in strictly designated areas.

Similarly, with all the other exemptions mentioned above, the rules are the same in that the people can only smoke within their own room or confined space and cannot smoke in any other enclosed area within the building. Hotels in particular need to be careful in this regard as the people who use hotel rooms are most likely to contain a cross-section of smokers and non-smokers over a period of time. Therefore, hotels should have designated smoke-free rooms and keep any rooms where it is permissible to smoke only for smokers and even that should be kept well ventilated to prevent Secondary Smoke affecting the health of any cleaners once the room has been vacated and needs to be cleaned.

Rules on Smoking and Working in Private Residences

I’m a Non-Smoker but my Work Involves Visiting People in Their Own Home. Are They Allowed to Smoke Whilst I’’m Working There?

Unfortunately, the answer is yes in most cases. Anybody who visits a person’s private residence as a result of their work cannot stop the occupier from smoking. This includes people who work as care workers and other occupations such as tradesmen and women who will need to visit people in their own homes to carry out repairs or installations. Common decency should prevail here.

If you are a smoker and you receive care assistance or you’’re getting a plumber in to install a new boiler, for example, it’s courtesy not to smoke whilst they are there. In fact, in some cases, when contracts are agreed, a tradesperson might stipulate that he / she will not work inside a house where a person is smoking. In the event of this, it is then up to the person living in the house to decide whether or not they can agree to this and if they do, they need to comply. However, by law, a person who lives in their own home can still smoke freely, even if a non-smoker is carrying out work or providing a service to them on their property, unless some kind of written agreement not to smoke is drawn up first and agreed by the resident. Usually common courtesy is respected here, however.

Another area where smoking is still permitted is on a theatre’s stage but only to the actor(s) involved and only if the act of smoking is crucial to the integrity of the performance. However, it’s usually only the actual performances and not rehearsals where this is permitted.

And, finally, on the subject of people’s own homes, if you work at home you are allowed to smoke – it’s your home after all – but you cannot smoke if you employ others to work from your home also, unless that’s agreed by all those who might be working from your home.

35 thoughts on “Smoking Ban Exemptions

  1. Will says:

    I have lived in a 1st floor housing association flat for many years and am a non smoker. Recently a woman resident moved in to the flat below me and smokes a lot of the time. I now get a nasty taste in my mouth sore throat and am constantly clearing my throat and chest of phlegm, which makes me very fed up, putting me to some trouble by opening windows when it’s cold, going out for a walk etc. Although my door has plastic draft excluders the smoke still enters. If I went somewhere else it could be just as bad or worse. The housing officer tells me that it’s government legislation that people are allowed to smoke in their own premises. As it is interfering with my life and having a bad affect on my health is there anything that can be done?

  2. dee says:

    I bought my flat from the council last November when a new resident moved into the flat below, shortly before the paperwork went through. I complained to the council that the smoke was getting into my flat, they smoke around the clock, and the council said that they can do nothing because they are allowed to smoke in their flat. Now that I work from home it has become a worse issue. I have made modifications to the flat and bought air purifiers and plants to help, but they only do so much. Do I have any legal rights as to my health and safety being exposed to passive smoking day and night, particularly as Iwork from home now?

  3. Dia1962 says:

    Hi I am a resident in a care home for respite care, I am a non smoker, they have just moved a resident next door to me whose patio door opens onto the same court yard as my door, as there is no fixed seal each time he goes to his door to smoke it comes through to my room even though the door is closed, he has been asked to smoke across the corridor at another patio area which in turn means when it’s raining he stands at the door filling the corridor with smoke outside my main door, when a carer or cleaner enters again my room fills with smoke! The management are non supportive and most of the staff smoke themselves and cant see the issue! I do not want smoke in my room full stop! What are my rights when the care homes are exempt?

  4. LM says:

    I work as a carer in a residential home and have been asked to take residents outside for a cigarette and stay with them during this time .as I am a non smoker I refused. Do I have the right to refuse ?

  5. Joan says:

    Hi I work in an NHS office block Headquarters to be exact. Although it has a none smoking policy all the staff are going down the road smoking their cigarettes. They bring their butt ends back and put them in the bin just outside the building. And as Domestic staff we are told that we have to empty that bin. It seems so bad of second hand smoke and I feel it is making me ill. Is there anything I can do?? Surly as a none smoker I have rights?? Yours sincerely Joan

  6. T says:

    I currently live in a house provided by my employer, there are also othersome that reside here and also smoke. Our employer says we can’t smoke indoors. Can we petition to be able to smoke in our own rooms rather than outside where there isn’t shelter?

  7. whiterosegen says:

    How does Leeds Bradford airport get round the smoking ban? Their smoking area is inside and completely enclosed.

  8. Lisa says:

    Hi I’m currently employed as a private carer. The guy I care for smokes and due to bed rest is now smoking in his bedroom. Is he allowed to do this. I’m also 18 weeks pregnant so concerned about 2nd hand smoke. Based in scotland

  9. Charlie says:

    As a carer for my partner at home my step daughter smokes but outside in garden but comes back in but you can smell it on a carer for my partner at home this is my work place 24/7 can I stop my step daughter from smoking and is she breaking the law.

  10. Jomo says:

    I work in an elderly care home and residents are aloud to go outside for a ciggarette. One newish lady needs assistance to go out for a ciggie in a wheel chair. She has ciggarettes and has smoked for over 50 years. Carers have been told not to take her out as the doctor doesnt want her smoking. If she is not allowed out she doesnt come out of her room. She has capacity and doesnt have a bad chest or anything like that. Can she be stopped? This is in England.

  11. Carol says:

    Hi I work for a disabled couple in there own house I work Monday to Friday 9am till 5pm and they both smoke about 40 a day and they both smoke in the car I’ve just recently stop so not sure where I stand on this any information would be greatly recieved

  12. Shar says:

    I work in an aged care facility, we are asked to take residents outside for a smoke, do we have the right to refuse?

  13. liswt69 says:

    I work for my friend,in her home, and she smokes constantly and recently i have had recurring chest infections which I have been told is due to second hand smoke. I now feel I must leave,can i quote this as a reason to quit my job ?

  14. Louisequestions says:

    I work as a care worker supporting people in their homes. I do long shifts and sleepovers. My company allows our client to smoke 50 cigarettes a day in their lounge which is the room we are expected to sleep in. Is this legal?

  15. Greg says:

    If you look up HSE OC 255/15 second hand smoke has never been proved to be significantly harmful, the reason the HSE did not bring the smoking ban in to protect workers, as there was no world wide evidence that the HSE could find that second hand smoke is significantly harmful, better to look after the elderly people and patients rather than wining about harm that does not exist.

  16. Beth says:

    My brother is in a residential care home. He is now not allowed to smoke in the courtyard as this is deemed a fire risk. Instead he has to go off the premises onto the roadside. Due to his disabilities, a care has to be with him at all times. Is he allowed to smoke in his room? Please advise as my mother is getting very distressed over this.

  17. Mr Gibs says:

    I am A Mental health support worker and the medium forensic unit, where I work has a strict no smoking policy but the clients always end up obtaining tobacco and smoking but nothing is being done as we are now exposed to second hand smoke on a regular occasion while attempting to police this, we have no backing from the senior managers and its starting to effect staffs health and more so staffs health whom have asthma, I would like to know if there is any sort of legal procedure we can go through to force the hospital to adopt a stronger position to prevent the smoking or to compensate the staff who are either becoming ill from this or could obtain a more serious illness in the future due to there negligent attitude

  18. Sarah says:

    I live in emergency accommodation via the council but the property is privately owned. It has 130 flats all for the same purpose. There is a small designated smoking area but it is small cramped and has spiders. Am I allowed to smoke in the areas that are not covered by any type of building structures or roofs? At present the owners of the building have NOT implemented a zero smoking policy.

    • Safe Workers says:

      @Sarah – You would be better to contact the landlord directly about this. If there is a designated smoking area, that would suggest other areas are no-smoking zones.

  19. Coffe girl says:

    I am a non smoker, but constantly been asked to go and clean a very busy smoking area at the airport, cuz apparently it’s in my job description, although im a coffe girl in that restaurant.I have refused it today as the smell of cigarettes are making me sick, have i got any rights there as i am a non smoker? as it’s affecting my health.

    • Safe Workers says:

      @Coffe girl – Usually if a task like this is in your job description then you will have to undertake that task. All UK airport smoking areas are situated outdoors, so this should not be too much of a problem

  20. mags says:

    I work in a care home where there is a designated smoking room. Some residents stay in there all day. I am a nurse who has to administer medication at the right time. Some members of staff don’t like it when I tell the residents to come out of the smoke room for their meds because I point blank refuse to go in there. It is small, poorly ventilated and all the windows are closed because the residents whinge that they are cold!! Am I within my rights refusing to go in?

  21. sharon says:

    I am a non smoker and work in the community as a care support worker and sometimes I have to attend residents properties that smoke and when this happens my throat starts to feel sore and tight and my chest hurts can I refuse to go into these homes.?

    • Safe Workers says:

      @sharon – Please read the section in the above article entitled: “I’m a Non-Smoker but my Work Involves Visiting People in Their Own Home. Are They Allowed to Smoke Whilst I’m Working There?” for your answer.

  22. Maggie says:

    My disabled sister went into a care home so I could have respite. Her bedroom was next to the “smoking room”. She was subjected to “passive smoke” for the time she was there as were the other bedrooms around this smoking room. Surely this is wrong?

  23. coughinggal says:

    I am and editor and work from home and a new neighbour has just moved in directly below me. She is also a journalist and mostly works from home and smokes incessantly. This is the first time a smoker has lived in the house in the 15 years I have lived here, and I find that I cannot stand being home with all the smoke drifting up and am considering renting an office. Can I charge her for that? Are there any rules against her smoking in our house, as it is being used also as a workplace 8 hours of the day? Many thanks for any help

    • Safe Workers says:

      @coughinggal – It is two separate flats or a shared house. There are no regulations to prevent people smoking in their own property. If she’s smoking in a communal garden or shared hallway etc then you might be able to report it.

    • Safe Workers says:

      @Mel – As in the repsonse to a comment below: Goverment guidance suggests that “staff who do not smoke may register their unwillingness to clean rooms where smoking has taken place”. Your employer should carry out a risk assessment (Health and Safety at Work etc Act 1974) on the hazards of exposing staff to secondhand smoke before deciding on arrangements for cleaning rooms/areas. The employer may then offer the work to members of staff who are smokers. Ask your employer what measures can be taken to protect you.

    • Safe Workers says:

      @bobby – Goverment guidance suggests that “staff who do not smoke may register their unwillingness to clean rooms where smoking has taken place”.
      Your employer should carry out a risk assessment (Health and Safety at Work etc Act 1974) on the hazards of exposing staff to secondhand smoke before deciding on arrangements for cleaning rooms. The employer may then offer the work to members of staff who are smokers. Ask your employer what measures can be taken to protect you.

  24. Marty says:

    I live in a retirement home for over 60s. not in a residential home . I cannot find any info about smoking in common areas, such as the grounds , could you tell me where to find please

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