September 2005


Thompsons Solicitors is the UK's most experienced trade union and personal injury law firm. It has a network of offices across the UK, including the separate legal jurisdictions of Scotland and Northern Ireland.

Thompsons only acts for the victims of injury, never for employers or insurance companies. Thompsons brought the first successful passive smoking case and is currently acting for a number of clients with illnesses caused by second-hand smoke.

Thompsons has provided expert evidence to a number of enquiries and reports on the effects of passive smoking, including the Royal College of Physicians’ newly published Going Smoke Free publication.


The Health Committee Inquiry

The evidence that there is some health risk to non smokers from inhaling environmental tobacco smoke (ETS) is now unarguable. At present approximately 2.2 million employees are working in premises where smoking is allowed throughout.

The Labour Force Survey figures for 2002 show that 320,000 people work in pubs, bars and nightclubs. The vast majority of these workers would remain exposed to ETS under the Governments  proposal to allow smoking in licensed premises serving food.

Currently there are no specific legal controls applying to workplace exposure to ETS. Employers must deal with this hazard in the context of their general health and safety duties to safeguard their workforce. The injured non smoking employee exposed to ETS is currently forced to pursue damages in the courts, a time consuming and expensive procedure for all concerned necessitating an adversarial approach.

The law requires a claimant to prove:

  • The employers knew or should reasonably have known that second hand smoke presented a risk of injury to their non smoking employees.
  • The employers had this knowledge at the time the relevant exposure took place. Many claims involve historical exposure going back over many years, so recent developments and reports are of limited assistance.
  • The employer knew not only of the general risk from second hand smoke, but also that they knew that the individual employee was being exposed to dangerous levels of smoke in her day to day work. This needs evidence from work colleagues and would require the Court to make the best assessment it can on the basis of that evidence as to what the levels of exposure were.

Only if it is decided that the exposure levels were high enough to mean that the   employer should at the time have done something about it, would the exposure potentially found a claim.

  • The employee would need to prove that the medical condition she had developed had been caused by the exposure at work, rather than by any exposure she may have had outside work. A claimant who lives with a smoker is, therefore, likely to encounter significant difficulties. So is someone who regularly socialises with smokers or who is an ex smoker herself. All these things would be matters of evidence requiring not merely a detailed analysis of the claimant’s lifestyle, but also the consideration of this evidence by medical experts. It may be sufficient to prove that the occupational exposure made a material contribution to the development of the condition, rather than being its sole cause, but the hurdles will be high.

None of the above means that claims for occupational exposure to cigarette smoke are impossible. They are challenging and the odds are stacked against them. A few cases have already succeeded and Thompsons is running an increasing number of viable cases for clients working outside the hospitality industry, including a young solicitor (age 28) suffering from asthma, with the lung capacity of the average 56 year old exposed to ETS in an office where smoking was allowed throughout. We are also acting for a computer technician who suffered bronchial shock and an exacerbation of his dormant asthma condition within minutes of working on equipment in a hospital doctors rooms.

Good employers already treat the issue proactively as one of industrial relations, which requires the active involvement of the workforce and their trade unions in finding a solution.

But more needs to be done. Good practice needs to be rewarded. Poor health and safety needs to be exposed and condemned. For many, perhaps most, enclosed workplaces, the banning of smoking is likely to be the outcome. This requires firm and simple legislation banning ETS from all public spaces without exception. We cannot see, with the health risks so well known, what justifiable exceptions there could be. An extension of that would logically include workplaces. Only in this way would it be possible to protect those employees forced to work with less enlightened employers.

We should not look back in years to come and regret the wasted opportunity for clarity and leadership in a key area of health and safety. We must not  allow another asbestos horror to develop, where government dithering will have cost thousands of avoidable deaths.

Many workplaces are also public places. Employers should not be allowed to use the excuse of the public’s desire to smoke as a means of failing in their primary duty to protect the health and safety of their workers. The employer who does nothing at all to deal with the health hazards of ETS among their workforce is storing up significant problems for the future.

Compensation claims may always remain difficult but there will be those which can succeed. And it is the employer who does nothing to address the problem who is most likely to be at risk from such claims. The Government faced with an obvious issue of Public Health should not be afraid of passing firm and simple legislation banning ETS from all workplaces.

Further information:

John Hall
Thompsons Solicitors