Making and using rules
Making and using rules

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Making and using rules

3.3 The Irish anti-smoking law

You now know what the Irish Government's arguments for introducing the smoking ban were, and have read some of the reactions to it. We are now going to turn to the law itself. The passage I want you to read is from the Irish Government Public Services website and explains the new law in simple language. Read the passage in Box 4 carefully and answer the questions in the activity which follows. The questions ask you to interpret the rules, something we will be looking at in more detail later in the course. For now, I just want you to use your own everyday knowledge and understanding. The purpose of Activity 4 is to provide you with an opportunity to read a document which attempts to explain a legal rule, and to answer some questions about the way in which the rule operates in practice – an important legal skill.

Box 4 Ban on smoking in the workplace in Ireland

Information

Since 29 March 2004, the Irish Government has implemented a ban [on] smoking in the workplace. This means that with effect from that date (29 March 2004) smoking is forbidden in enclosed places of work. This includes office blocks, various buildings, public houses/bars, restaurants and company vehicles (cars and vans). The ban is being introduced as part of the Public Health (Tobacco) Act, 2002 (Section 47) Regulations 2003.

Just under 25% of the Irish population smoke and the purpose of this ban is to offer protection to employees and the public who are exposed to the harmful and toxic effects of tobacco smoke in the workplace. Smoking has been identified as a major cause of heart disease and a significant contributor to lung cancer in Ireland.

Rules

From 29 March 2004, you are not allowed to smoke in an enclosed place of work in Ireland. While the ban will mean that smoking will be forbidden in many places, there are a few exceptions:

  • Prisons

  • Police station detention areas

  • St. Patrick's Institution [a medium-security place of detention]

  • Nursing homes

  • Hospices

  • Religious order homes

  • The Central Mental Hospital

  • Psychiatric hospitals

  • Maternity homes

  • Hotel, guesthouse and B&B bedrooms

  • Third-level educational residential facilities.

The Government has stated that even though certain places are exempt from the ban, all employers (even those who are exempt) still have the right to enforce the legislation. In other words, even though the above organisations and institutions are not obliged to enforce the ban, they are free to do so if they wish. […] Given that prisons and places of detention are unique, the law does not apply to these institutions. […]

Outdoor smoking areas

While smoking in an enclosed workplace is forbidden under the law, employers have discretion to provide an outdoor smoking area, subject to the requirements of the law.

The law has defined an outdoor area as:

A place or premises, or part of a place or premises, that is wholly uncovered by any roof, fixed or mobile.

An outdoor place or premises that is covered by a roof, so long as not more than 50% of the perimeter (outside) is covered by a wall, windows, gate or similar. […]

Does my employer have to give me time off work for smoking breaks?

No. Employees in Ireland are only entitled to time off work for breaks as set down in Section 12 of the Organisation of Working Time Act, 1997. Your employer is not currently obliged to provide additional time for smoking breaks for employees nor will they be obliged to provide smoking breaks for employees after the implementation of the Smoking Ban in the Workplace.

Enforcement of the smoking ban

Inspections to ensure that the ban on smoking in the workplace is being implemented will be undertaken by Environmental Health Officers employed by the health boards. In addition, inspections will be carried out by Inspectors from the Health and Safety Authority. The traditional workplace locations visited by the Health and Safety Authority will have to comply with the new smoke-free measures requirements, as part of their general compliance with health and safety requirements.

Officers from health boards and the Office of Tobacco Control will ensure that smoke-free measures are undertaken in workplaces connected with the food and hospitality sector.

Offences

Any person found guilty of breaching the ban on smoking in the workplace may be subject to a fine of 3,000 euro. The owner, manager or person in charge of the workplace is legally responsible for ensuring that the ban on smoking in the workplace is complied with.

(Source: Citizens Information [Accessed 30 May 2007])

Activity 4 Analysing rules

0 hours 40 minutes

Based only on the information provided in Box 4, answer the questions below. Some of the answers merely expect you to identify the relevant factual information. Others require you to think a little more creatively!

  1. When did the ban on smoking in the workplace start?

  2. What legislation provided the basis for the ban?

  3. Does the ban extend to smoking in any car or vehicle?

  4. What was the justification for the ban?

  5. Does the ban extend to convents?

  6. Does the owner of a hotel have to allow people to smoke in hotel bedrooms?

  7. Does the ban apply to the dining area of a guesthouse?

  8. Can the rules be used to prevent a prisoner smoking?

  9. Must an employer provide an outdoor smoking area for employees?

  10. Would the premises in Figure 1 below be classified as an outdoor area? Assume that the open space depicted is the only open space.

  11. Do the new rules create an obligation on employers to provide breaks so that employees who wish to smoke may do so?

  12. Which different agents and agencies are involved in ensuring that the smoking ban is enforced?

  13. Could the landlord of a pub in which customers smoked on the premises avoid legal liability?

Figure 1
Figure 1 Outline of premises

Discussion

  1. 29 March 2004.

  2. The Public Health (Tobacco) Act, 2002 (Section 47) Regulations 2003.

  3. No – only company cars and vans (i.e. vehicles owned by the company).

  4. The purpose of the ban is stated to be the protection of people in the workplace from the harmful effects of tobacco smoke. These effects include heart disease and lung cancer.

  5. The rules do not specify convents, but they do not extend to religious order homes (which would include convents and monasteries); so the answer is no.

  6. Hotel bedrooms are exempt from the ban, but the owner (if they are the employer) may choose to enforce it if they wish; so the answer is no.

  7. Yes. The exception (subject to what I have said in the answer to question 6) only applies to bedrooms.

  8. It would seem not. Prisons are said to be ‘unique institutions’, and so the rules do not apply.

  9. There is no requirement to do so, though an employer may provide one at their discretion. If they do so, the outdoor area must be one which the rules define as outdoor.

  10. No. The rules explain that a premises with a roof is ‘outdoor’ if 50% or less of the perimeter is covered by a wall or similar. In Figure 1, much more than 50% of the building is walled.

  11. No. The rules do not alter the existing situation (which is that employers do not need to provide smoking breaks for their employees).

  12. Environmental Health Officers (employed by the health boards); Inspectors from the Health and Safety Authority; officers from the Office of Tobacco Control.

  13. No. The pub would be a workplace, and the landlord of a pub would, as ‘the owner, manager or person in charge’, be legally responsible for ensuring that people did not smoke there.

When you answered these questions, which of them did you have to think about a bit more carefully? My guess is that questions 5, 6, 7, 8, 9 and 10 required a little more thought than the others. Even if you answered these questions correctly, it is worth thinking about the thought process you were engaged in when you did so and being aware that they involved certain key comprehension and reading skills.

Question 5 is a typical legal question in that the answer depends on your interpretation of another term, for example, ‘Religious orders’ is a general category which could cover a number of more specific workplaces. It might very well be that there are some workplaces less obvious than convents (or monasteries) where deciding if they fell into the general category of ‘religious orders’ would be for a court to determine. We will look in more detail at the problems of interpretation later in the course but for now, the important thing to note is that if you answered the question correctly, you have demonstrated a very important skill. You have recognised that it is possible to answer a question about a rule by using everyday reasoning. If you did not answer the question correctly, take a little time to think about why you did not.

Question 6 required the use of another skill useful for those studying the way the law operates. At first glance, the answer would appear to be found in the list of exceptions. Hotel bedrooms are not subject to the mandatory ban. However, the answer to the question depended on reading beyond the list to the paragraph below and realising that there was a discretion to enforce the ban which could be exercised by the employer. This in turn meant qualifying the answer by saying that the hotel owner could exercise the discretion but only if they were the employer. You will frequently be asked questions like this, where the answer depends on connecting different parts of a text, and working out how one affects the other. You will also discover that you are only able to give a partial or conditional answer on the basis of the information you are given. (It would be incorrect simply to say that the hotel owner could enforce the ban without explaining that this would only be so if they were also the employer.)

Question 7 also requires careful reading. Because the list of exceptions includes hotel bedrooms, it might be tempting to assume that the ban does not apply to hotels. This would be wrong because, unlike the answer to Question 5, the particular does not include the general. ‘Religious order’ includes ‘convent’, but ‘hotel bedroom’ does not include ‘hotel’. It is very important that you use only the information at your disposal to answer the question asked and to assume that the information is accurate. Do not be tempted to think ‘They must mean hotel premises generally’, if that is not what you are told.

Question 8 is a tricky one. On the basis of the information given, it would seem that prisons are not ‘workplaces’ to which the ban could ever apply, even if an employer wanted to ban smoking. The reason it is difficult to be sure of the answer is the way the information is set out. Prisons are listed among the exceptions. There then follows an apparently general statement which purports to provide a discretion in respect of all exempted workplaces (which would mean that prison employers could impose a ban under the rules); but there then follows a brief statement explaining that prisons and places of detention are unique and that the law does not apply to them. Assuming that ‘the law’ includes the discretion to impose a ban, then the answer is no, but the explanation is not as clear as it could be. Generally, it is not good practice to answer a question with ‘it seems not’ or ‘possibly’, because this gives the impression that you do not know the answer and are hedging your bets! However, if the information is not clear, and you give an explanation of why your answer is circumspect then this will be adequate. It is better to say, therefore, ‘it could be argued’ (or words to this effect).

Question 10 is tricky for two reasons. One is the fact that you have to apply the meaning of a text in written form to a visual image. The other is the explanation given in the text. Even though the passage you read was provided as a lay-person's guide to the new rules, you may very well have found the explanation of what constituted outdoor places and premises a bit mind-boggling. This is in part because the sentence which includes ‘50%’ has two clauses, the first of which is general and the second of which qualifies the first using ‘so long as’ (creating the exception). The meaning is not made any clearer by the odd use of ‘cover’. Have you ever thought of a wall ‘covering’ the perimeter of a space with a roof on? No, neither have I. This kind of language in a rule does not make it easy to answer questions about the meaning of the rule, but it is unfortunately very common in legal texts. You will have further opportunities to think about the language of rules later in the course. For now, do not be too concerned if you got the answer wrong, or found the language difficult.

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