The Northern Ireland Smoking Order 2006, which prohibits smoking in all workplaces, most enclosed public spaces and public transport, came into force on 30 April, 2007.

Even after the Order became law, many of its measures are still being set out in regulations, including what is meant by a 'substantially enclosed' public space and what is defined as a 'work place'.

Despite these uncertainties as to what the regulations will finally say, businesses have spent months in preparation for the ban – for example, by making the relevant applications for planning/building control and landlord's consents. Businesses should involve their customers in the process by keeping them informed of the changes that will be implemented.

What does the legislation say?

The Order defines smoking as "being in possession of lit tobacco or any lit substance which could be smoked" and the objective of the legislation is to protect employees and the general public from exposure to passive smoking.

The Order makes provision for "enclosed or substantially enclosed" work places and public places to be smoke-free. Businesses are now obliged to ensure that no-one smokes in their premises (where there is more than one employee) and must display non-smoking signs.

Article three of the Order made provision for enclosed or substantially enclosed premises to be smoke-free by:

- making it an offence to smoke in a smoke-free place;

- making it an offence to fail to prevent others smoking in a smoke-free place;

- making it an offence to fail to display no smoking signs, with occupiers of premises under a duty to ensure such signs are displayed in the premises; and

- allowing environmental health officers the power to enter no-smoking premises to enforce the regulations.

Which premises are affected?

Smoke-free premises are those used as a place of work or where members of the public might attend for the purposes of seeking or receiving goods or services. This includes offices, pubs, hotels, restaurants and shops.

Private residential spaces do not have to be smoke-free. However, if it is used solely or partly as a place of work by more than one person, it must be smoke-free.

Additionally, any part of a private dwelling shared with other premises will need to be smoke-free if it is open to the public or used as a place of work. Hence communal lifts, kitchens, corridors and so on will also be affected.

Exemptions will be in place for:

- hotel bedrooms;

- hospices;

- care homes; and

- prisons where designated smoking rooms may be provided.

Penalties and enforcement

Anyone caught flouting the ban either by allowing smoking on their premises, failing to install adequate signage or by smoking themselves could receive a fixed penalty of £30-£200 or face criminal prosecution, which could result in a fine of up to £2,500.

Implications for property owners and occupiers

Property owners and occupiers need to ensure they have the correct signage. Also, alterations may be required to the premises to allow smoking in designated areas, such as operating a beer garden or a piazza outside the premises.

Planning permission or building control approval will be required for any alterations. Since the ban, many publicans have started providing outdoor areas without obtaining the required planning permission. Publicans who did lodge planning applications were delayed, however, as there is unfortunately still a massive backlog of applications in the system, holding up the process.

Tenants should consider obtaining landlords' consent under their leases to make alterations. They may also need to consider leasing additional premises, such as external areas to create smoking areas for their customers. Tenants may require landlords' consent to erect the signage required by the legislation to be displayed at the premises.

Finally, owners/occupiers of licensed premises would be wise to check their liquor licences to verify that they permit alcohol consumption in external areas they wish to designate for smokers. An application to vary the licence may be required.

Implications for employers

The smoking ban is expected to have a number of benefits for employers, including reductions in sickness
levels, an increase in productivity resulting from fewer cigarette breaks and lower risks of fire damage and cleaning costs.

While the legislation will not entitle the employees to a smoking break, employers must recognise the requirement for this; particularly if it has been established over a number of years that the employee could claim 'custom and practice'.

It will be up to the employer to agree reasonable breaks with the employee and some employers may even wish to provide support schemes to help employees kick the smoking habit.

Employers will need to remove all ashtrays and external stubbing-out bins will need to be provided at the entrance to the premises. Consideration may also need to be given to ensure the safety of individuals in outside areas, if poorly-lit or isolated. Business owners affected by the ban should develop written no smoking policies and make sure that 'No Smoking' notices are clearly visible to everyone who is visiting the premises.

A month in

The ban has now been in force for just over a month, and so far the public response has been positive. However, Belfast City Council has commented that refuse disposal outside pubs, clubs and restaurants is up by 17%, which raises the issue of who should take responsibility for waste arising from the use of outdoor smoking areas.

The implementation of the smoking ban in the Republic of Ireland has been a great success and can provide valuable lessons for Northern Ireland. The experience from the Republic shows that employers can reap very positive benefits from the ban and that it does protect the health of employees.

Northern Ireland is likely to see similar results in the months to come.

Patricia Johnston is a commercial property partner in the Belfast office of A&L Goodbody.