Smoke Free Work Place and Public Place - Term Paper Example

 SMOKE FREE WORK PLACE AND PUBLIC PLACE INTRODUCTION Everyone has a right. This includes the right to eat whatever food one wants to eat in peace. However, the exercise of such right may infringe on the rights of other persons1. To resolve this issue, the courts of law will interpret the laws. For example, a man wants to kiss a beautiful woman watching the Big Ben clock. The woman refuses to be kissed. There is now a conflict of rights here. Further, the employees and the customers of the public place or work place must always be protected. Many nonsmokers hate the smell of second hand smoke. The U.S. Surgeon General issued his famous Report that smoking causes disease and death in 19642. The following paragraphs explains the reasons for the validity of the ‘smoke free public place and work workplace’. BODY House of Lords Committee on the Constitutional Reform Bill, written evidence from the Secretary of State for Constitutional Affairs and Lord Chancellor 14(2004) stated that the rule of law is the focus of democracy in the UK as well as the shared values of EU member states. For, the rule of law creates an atmosphere of transparency, fairness and predictability in the performance of business and contracts as well as personal safety, protection of the individual and property. The Judiciary safeguards the rights of individuals are protected3. The EU, where the UK is a member state, is a supranational organization where treaties are considered law. In fact, the decisions of the European Court of Justice will prevail if it is in conflict with the decisions handed down by the member states’ courts of justice4. For, the GREEN PAPER issued by the EU Commission entitled Towards a Europe free from Tobacco Smoke: Policy Options at EU Level states the legal framework on Environmental Tobacco Smoke exposure and its relation to health considerations5. The reports declares that passive smoking(inhaling the smoke exhaled by smokers) can cause respiratory diseases including lung cancer6. Also, the second hand smoke (SHS) is a major source of exacerbation for people who have asthma, chronic obstructive pulmonary disease that include lung cancer, allergies and other related diseases which makes them live a secluded life7. In addition, SHS is dangerous to young children and infants as well as pregnant women. For, it has been proven to cause lower birth weight, pre –birth death and forced births of children less than nine months. The green paper bans smoking in all public places and workplaces, including bars and restaurants. Furthermore, this smoking ban8 has already introduced in Ireland in March of 2004 and Scotland in March of 20069. The smoking ban took effect in Northern Ireland, England and Wales recently in the summer of 2007. This smoking ban covers only enclosed public places like restaurants, bars and includes ALL work places. The UK’s Health Act of 2006 chapter 28 Sec 55 states that a person caught smoking in a smoke free place, if convicted, shall be levied a fine of £ 10010. In addition, the employers can not claim that there is a ‘scientific uncertainty’ that the employees of the company will be at risk if they are exposed to Environmental Tobacco Smoke11 (ETS). For, volumes of literature show the stark reality that polluting smoking and ETS are dangerous to a person’s health12. Thus, the employer can not claim that exposing the employees to SHS would causes health problems thereby winning his case in court. In fact, the employer is COMPULSORILY instructed by law assess if such smoking is usual in their place of business. And, the employers are required to see that such secondary smoke will cause health problems to the company employees. This includes employees working in bars and restaurants. The basis for a guilty verdict is for the employer to just simply foresee that there will be some kind of health risk that SHS causes to the workplace employees13 because implementing a healthy work place is the primary duty of the employer14. Also, the test to determine what the reasonably practical healthy working condition must be had already been settled15. The Edwards v National Coal Board case decision was that the health risk that the employees have to work with must be equaled to the ‘sacrifice’ involved. The sacrifice here means the trouble, time and money that the employer has to exert that is necessary to lessen the probability of the employees falling ill from work related illnesses. Failure to do is a breach of the employment contract based on the HSWA1971 s2(1). Also, the smoke free workplace is required under Regulation 3 of the Management of Health and Safety at Work Regulation 1999. The regulation specifically states that all employers must make a suitable and sufficient assessment of the risks to the health and safety of their employees to which they are exposed whilst they are at work. This includes assessment of the risks to health and safety of persons not in their employment but arising from doing business with the company. This includes the customers and other visitors that frequent the bars, restaurants, schools and other public places. Thus, the employer must use their assess of health risks as well as hazard risks to put into place the required safety measures that will decrease the possibility of falling victims of health risks. This requirement falls under Part II of the Fire Precautions (Workplace) regulations of 1977. To reiterate, the legal issue on the relation of work and leisure to the corresponding degree of exposure to Environmental Tobacco Smoke or second hand smoke16. This case stated that the health risk includes the possibility of danger and not just actual danger. In addition, the employee who will file a claim against the company does not have to prove that the employer had violated his duty to create a healthy work environment that caused the complaining employee to be exposed to Environmental Tobacco Smoke. Further, the employee does not have to prove that the Environmental Tobacco Smoke was the main cause of his unhealthy condition. This occurred in the where the employee filed for a claim for pneumoconiosis which was acquired due to prevailing unhealthy work conditions17. The employee claimant had proven that the breach of duty present was an influential factor that caused him to be sick. Furthermore, the no smoking law is designed to protect the public peace by prohibiting SHS and other forms of toxicomania must be distinguished from a law that prohibited an activity without reference to individual conduct or to any real participation in a breach of public peace18. For the law represents a relationship between the state and its residents19. This runs in contradiction with the right of the individual to smoke anywhere he or she wants. Along this line, some people argue that too many laws like the no smoking policy irritates people 20. Many UK establishments have complied with the no smoking in public places and work places regulation entitled Statutory Instrument 2006 No. 3368 The Smoke –free (Premises and Enforcement) Regulations 2006. In fact, “ data has been collected from 88,899 inspections, which includes 1,090 hotels, 6,783 restaurants and 9,568 licensed premises. Enforcement officers found that 97 per cent of premises were respecting the requirement to prohibit smoking in enclosed premises and 79 per cent were displaying the correct no-smoking signage. Compliance was even higher in smokefree vehicles, with figures of 98 per cent and 84 per cent respectively.” 21 The evidences shown below and the appendix composed of graphs prove that this is indeed true. For, the WHO, shows that tobacco smoke is the biggest contributor to the ill health of a nation22. Annex II: Global burden of ill-health Source: WHO's Global Burden of Disease Study 2004 Evidently, the employer’s right to privacy to allow smoking in the workplace and enclosed public places like restaurants will violate the smoke free regulation23. For, the right to privacy and right to smoke which are personal rights is not absolute. Because, the English Tort Law has declined to recognize that invasion of personal privacy is an independent tort24. Also, the Court of Appeals affirmed in the infamous case of Kay v. Roberson that the English Law on the right to privacy is not absolute25. Likewise, this new law on free smoking that protects the public’s health is different from other laws that involves to a person’s violation of the law on public peace. Public refers to a person’s right to do what he or she wants in public provided it does not violate the rights of others26. Recent Cases In the case of Ms. Margaret DelaHunty, she filed a case against two smoke manufacturers for her addictiveness to cigarettes resulted to her having cancers. The court decided that her cancer was contributed to by her willingness to smoke several cigarettes even though she knew that cigarette smoking was dangerous to her Health. This case was filed in the appeals court. She had already lost her case in the lower court and was raising the issue a court level higher. The judge decided against her favor and threw out of the courtroom her appeal. In addition, this court found that she had admitted that she was already afflicted with cancer long before she smoked the products of these two cigarette companies for she was already addicted to a prior cigarette brand before shifting to the smoking products of these two companies being charged in courts. For, she stated that her cancer appeared after she had been smoking cigarettes of a former brand27. This case only shows that she willing contributed to the cancer because did not heed the warning printed on each cigarette box stating that “the surgeon says that smoking is dangerous to your health”. In a recent June 2004 EU Case decision stated that “Even if the prohibition of marketing tobacco products for oral use under Article 8 of Directive 2001/3728 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco products constitutes a restriction referred to in Articles 28 EC and 29 EC, it is justified on grounds of the protection of human health, and cannot therefore be regarded as having been adopted in breach of the provisions of those articles. This decision is in accordance with the conclusions of the studies conducted by the International Agency for Research on Cancer, tobacco for oral use contains particularly large quantities of carcinogenic substances; … these new products cause cancer…”29 CONCLUSION The above data shows that the right of the individual to smoke in public places will be relegated to the backseat. For, the law that prohibits smoking in public places covers the entire EU population. The law on smoke free public places and work environments is primarily focused on the keeping the entire population healthy. For, a healthy work force will make the economy run faster and better as compared to a smoke –infested employee who has contracted lung disease. Also, the right to privacy is not absolute when the public’s welfare is at stake. The case of Ms. Margaret DelaHunty shows that she had willingly accepted the risk that she would be a future victim of cancer if she smokes a cigarette or two. She read the warnings on the cigarette boxes stating the danger that smoking would bring to her and went on smoking. Thus, she should not now file a case stating that two cigarette companies will pay her for her lung cancer. In addition, the EU case above closes the issue. The Green Paper discussed above shows that the EU Commission’s paper Towards a Europe free from Tobacco Smoke: Policy Options at EU Level states the legal framework on Environmental Tobacco Smoke exposure and its relation to health considerations is a major contributory factor to cancers on people who do not smoke. For, many of these people inhaled their smoke of a co –worker in tight air conditioned work place. Also, second hand smoke can be inhaled in public places like air conditioned trains and air conditioned restaurants, hotels and the like. REFERENCES: Smoke –free regulations 2002, retrieved Nov 9, 2007, Thompson, retrieved Nov 9, 2007, GREEN PAPER, Attitudes of Europeans towards tobacco”, Special Eurobarometer 239, January 2006, retrieved Nov 9, 2007, The Health Act of 2006, Retrieved Nov 9, 2007, Betts, K. S. (2007). Secondhand Suspicions: Breast Cancer and Passive Smoking. Environmental Health Perspectives, 115(3), 136+. Retrieved November 10, 2007 Dakolias, M. (2006). Are We There Yet? Measuring Success of Constitutional Reform. Vanderbilt Journal of Transnational Law, 39(4), 1117+. Honorê, T. (1995). About Law: An Introduction. Oxford: Clarendon Press. Retrieved November 10, 2007 Jayawickrama, N. (2002). The Judicial Application of Human Rights Law: National, Regional, and International Jurisprudence. Cambridge, England: Cambridge University Press. (1998). The Law of Obligations: Essays in Celebration of John Fleming (P. Cane & J. Stapleton, Ed.). Oxford: Clarendon Press. (1998). 1 Tort and Human Rights. In The Law of Obligations: Essays in Celebration of John Fleming, Cane, P. & Stapleton, J. (Eds.) (pp. 1-12). Oxford: Clarendon Press. (1998). 13 The Smoking War and the Role of Tort Law. In The Law of Obligations: Essays in Celebration of John Fleming, Cane, P. & Stapleton, J. (Eds.) (pp. 343-360). Oxford: Clarendon Press. Pullen, I. M. (1990). 3. Patients, families and genetic information. In Family Rights: Family Law and Medical Advance, Sutherland, E. & Smith, A. M. (Eds.) (pp. 42-56). Edinburgh: Edinburgh University Press. Rich, J. S. (1998). Commercial Speech in the Law of the European Union: Lessons for the United States?. Federal Communications Law Journal, 51(1), 263. A Right as Law-Abiding Citizens to Live without Intimidation. (2004). 10. Schauer, F. (1992). Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life. Oxford: Clarendon Press. Szasz, P. C. (1991). Chapter 8 Measuring Liability for Damage Due to Radioactivity. In International Law and Pollution, Magraw, D. B. (Ed.) (pp. 175-195). Philadelphia: University of Pennsylvania Press. Retrieved November 10, 2007 Wilkinson, D. (2002). Environment and Law. London: Routledge. Retrieved November 10, 2007. Attitudes of Europeans towards tobacco”, Special Eurobarometer 239, January 2006, http://ec.europa.eu/health/ph_information/documents/ebs_239_en.pdf Case C-434/02. European Court reports 2004 Page I-11825 Retrieved Nov 10, 2007 Appeal No. 472/2004 Delahunty vs Player & Wills (Ireland) Ltd and Gallaher (Dublin) Ltd. Irish Court of Appeals. ([2006] 1 IR 304, [2006] IESC 21; From Supreme Court of Ireland Decisions. Retrieved Dec 11, 2007. http://www.bailii.org/ie/cases/ TABLE OF CASES Case C-434/02. European Court reports 2004 Page I-11825 Constitutional Court of the Slovak Republic, Decision II. US 94/95, 13 December 1995, (1995) 3 Bulletin on Constitutional Case-Law 34. Hughes v Lord Advocate [1963] Appeals Cases 837). Wilsons & Clyde Coal Co Ltd v English [1938] Appeals Cases 57). Section 2 of the Health and Safety at Work Act 1974 (HSWA) Edwards v National Coal Board ([1949] 1, All England Law Reports 743) Court of Appeal in R v The Board of Trustees of the Science Museum ([1993] 3, All England Law Reports 853) Constitutional Court of the Slovak Republic, Decision II. US 94/95, 13 December 1995, (1995) 3 Bulletin on Constitutional Case-Law 34. Notably by D. J. Serpp in his important article "'English Judicial Recognition of a Right to Privacy'", ( 1983) 3 OJLS 325; also by myself, "'Should there be a Law to Protect Rights of Personal Privacy?'", ( 1996) 5 EHRLR 450. [ 1991] FSR 62 Bonnington Castings v. Wardlaw[1956]Appeals Cases 613 Appeal No. 472/2004 Delahunty vs Player & Wills (Ireland) Ltd and Gallaher (Dublin) Ltd. Irish Court of Appeals. ([2006] 1 IR 304, [2006] IESC 21; From Supreme Court of Ireland Decisions TABLE OF STATUTES Smoking, Health and Social Care (Scotland) Act 2005 (asp 13), retrieved Nov 12, 2007 www.statutelaw.gov.uk/legResults.aspx?LegType=All%20Primary&PageNumber=4&NavFrom=2&activeTextDocId=1781894 Environmental Assessment (Scotland) Act 2005 (asp 15) retrieved Nov 12, 2007 http://www.statutelaw.gov.uk/content.aspx?LegType=All+Primary&PageNumber=4&NavFrom=2&parentActiveTextDocId=1944110&ActiveTextDocId=1944208&filesize=385 Clean Neighbourhoods and Environment Act 2005 (c. 16). Retrieved Nov 12, 2007. http://www.statutelaw.gov.uk/legResults.aspx?LegType=All%20Primary&PageNumber=4&NavFrom=2&activeTextDocId=1417210 The Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 (No. 90). Retrieved Nov 12, 2007. http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=smoking&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&TYPE=QS&NavFrom=0&activeTextDocId=2467600&PageNumber=1&SortAlpha=0 The Smoking, Health and Social Care (Scotland) Act 2005 and the Prohibition of Smoking in Certain Premises (Scotland) Regulations 2006 (Consequential Provisions) (Scotland) Order 2006 (No. 1115). Retrieved Nov 12, 2007 http://www.statutelaw.gov.uk/legResults.aspx?LegType=All+Legislation&title=smoking&searchEnacted=0&extentMatchOnly=0&confersPower=0&blanketAmendment=0&TYPE=QS&NavFrom=0&activeTextDocId=2496432&PageNumber=1&SortAlpha=0 Regulation 3 of the Management of Health and Safety at Work Regulation 1999 United Kingdom Health Act of 2006 chapter 28 Sec 55 ( smoking) WHO Framework Convention on Tobacco Control International Treaty Article 8 (passive smoking). Woo, a., Health versus Trade: The Future of the WHO's Framework Convention on Tobacco Control, Vanderbilt Journal of Transnational Law, Vol. 35, 2002. Statutory Instrument 2006 No. 3368 The Smoke-free (Premises and Enforcement) Regulations 2006. Retrieved Nov 12, 2007 Statutory Instrument 2007 No. 923. The Smoke-free (Signs) Regulations 2007. Retrieved Nov 12, 2007 Read More