Smokers face American-style prohibition

Passive smoking can seriously damage your health; now passive smokers may be able to seriously damage their employers by going to law. Michael Streeter, Legal Affairs Correspondent, reports that it could lead to a total ban on smoking in bars and restaurants.

Smoking is banned in most restaurants in New York City and the same could happen here.

A series of legal actions are being planned in which waiters and waitresses would sue their employers for putting them at risk through passive smoking.

The campaign will be based on legal advice from a leading barrister, given to Action on Smoking and Health (Ash), which says that people working in smoke-filled atmospheres, have the right to take legal action against employees. Recent medical evidence about the dangers of passive smoking has given the anti-smoking campaign a new impetus.

In particular, employees with an above-average risk - through a heart condition or asthma - would have a "real possibility" of gaining an injunction to force the owners to fulfil statutory requirements for a safe working environment. In the next 24 hours, British Airways will announce that it is banning smoking on all the remaining flights where it is still allowed.

Clive Bates, director of Ash, said the opinion of John Melville Williams QC could mark a "sea-change" in the way smoking at work is viewed and could pave the way for non-smoking bars, pubs and restaurants similar to those in New York City. "This shows that for people working in pubs and bars the protection for them is no different from anyone else. The employers have no less responsibility in law."

The legal opinion comes after medical evidence last month that families of smokers are 25 per cent more likely to suffer cancer than those of non- smokers; tangible proof of the dangers of passive smoking which means that employers cannot plead ignorance of the dangers. Mr Bates has now written to ministers and the Health & Safety Executive urging that the HSE issue new and tougher guidelines reflecting the hazards of what is often called environmental tobacco smoke (ETS). "That would put the official stamp of approval on it," said Mr Bates.

Ash believes that if there is enough government encouragement the 72 per cent silent majority of non-smoking adults could help force the widespread banning of smoking in most, if not all, public places. It cites a recent US survey which suggested that banning smoking in bars caused no slump in trade.

The HSE said yesterday it was "examining" the legal opinion commissioned by Ash and would be considering the scientific and medical evidence on ETS to see what, if any, extra steps it needed to take. There are existing guidelines reminding employers of their duty to provide safe areas of work and urging them to adopt specific policies on smoking.

However, Michael Ripley, spokesman for the Brewers and Licensed Retailers' Association, whose members run around half of the pubs in the country, warned against legal challenges: "Pubs are public places and anyone going for a job in a pub must realise that people are going to be smoking. If we go in this American direction of litigation it will open the doors to people not seriously interested in working in a pub but who f ancy their chances in court."

The industry was already ensuring that staff had better working conditions he said.

Tony Payne, chief executive of the Federation of Licensed Victuallers' Association, which represents up to 1,000 pub landlords, said his association had already launched a scheme encouraging members to introduce air cleaning systems in pubs and had reached a deal with contractors to get this work carried out.

"We take this issue seriously and we think it is important to look after our staff and customers. That's why we are doing something about it." He said the Department of Health had praised the initiative.

Anti-smoking campaigners believe, however, that the mood in Britain like the US, is moving towards completely non-smoking bars, pubs and restaurants. They point out that while just over a quarter of adults smoke, more than 80 per cent drink.

A possible sign of this changing culture is shown by Anand Zenz, a designer whose work includes well-known London bars such as Belgo and Echoe, and who is planning to design a bar where smoking is prohibited.