The Right to a Smoke-Free Workplace
Court of Amsterdam (administrative law section), 26 March
2010, JAR 2010/159
Tobacco Act
Since 1 January 2004 every employee is entitled to a smoke-free
workplace. Section 11a (1) of the Dutch Tobacco Act provides that
employers are obliged to take such measures as to enable employees
to perform their tasks without experiencing any hindrance or
nuisance from smoking by others. It follows from Section 11b (1)
and the annexes to the Tobacco Act that managers and employers who
do not properly enforce the smoking ban or do not take measures to
establish smoke-free workplaces, may be imposed a fine of €300 for
their first violation of the Tobacco Act. For subsequent
violations, this fine may mount up to €2,400 per
violation.
Smoking in Director's Office
The Court of Amsterdam recently adjudicated a case in which the
Tobacco Act was said to have been violated and a fine of €300 was
imposed. In this case the Food and Consumer Product Safety
Authority (Voedsel en Waren Autoriteit, "VWA") had
discovered during an inspection in an office building in Utrecht on
17 June 2006 that people were smoking in an office space. Not only
was there a strong smell of tobacco in the air, but there was also
an ashtray in the room with stubbed-out cigar and cigarette butts,
which indicated violations of Section 11a of the Tobacco Act. On
the basis of this discovery, the VWA sent the company a written
warning, pointing out that another inspection would follow in due
course and that, if a new violation would be discovered, the VWA
would impose a penalty.
As announced, another inspection was made by VWA on 16 May 2008.
We can read the following in the report of the special
investigating officer: "In the company of the director I walked
to the first floor of the building via a staircase. Having arrived
at the first floor, I smelt a pungent smell originating from the
smoking of tobacco products. Then I saw a door standing ajar to an
office space. On this door standing ajar, I saw a sign with the
following text: 'Office space. No entrance. Call ext. 19 for an
appointment'. (…) On the desk I saw an ashtray with cigarette butts
and ash in it. When I asked, I heard the director say: "This is my
office; I smoke here in my office. After the previous inspection I
put that sign on the door of my office, so my staff members do not
have to step into my office. They can make an appointment, and then
I go and see them." After this a man came and stood in the
doorway of this office space. I heard this man ask the director if
he should lock up the showroom, as he was leaving. (…) This exposed
the staff member concerned to tobacco smoke, since someone had been
smoking in this office space." After this discovery the
director was heard, it was concluded that the Tobacco Act had been
violated, and a fine of €300 was imposed.
The Opinion of
the Court
The employer objected to the fine, but his objection was
rejected, whereupon the employer lodged an appeal. Apart from some
formal objections, the employer argued that it had wrongly been
assumed that the room where the investigation was held was not
exclusively used by the management, and that it had also wrongly
been alleged that staff members of the employer regularly step into
that room.
The Court rejected this argument. In the opinion of the Court it
is sufficiently clear from the report of the hearing that employees
report to the director's office occasionally. This is not altered
by the fact that there is a notice on the door saying 'Office
space. No entrance. Call ext. 19 for an appointment'. After all,
the inspector concluded on the spot without being disputed that an
employee of the employer reported in the doorway with a question
about locking up the showroom. In the opinion of the Court, it is
therefore sufficiently certain that the employee concerned reported
to his director in the scope of his duties, and was exposed to
tobacco smoke on that occasion. The Court therefore established
that the employer had violated Section 11a (1) of the Tobacco Act.
The fine imposed is in line with the provisions set out in Section
11b of the Tobacco Act and the application of the fixed rate has
not appeared to be unreasonable in this
case.
Tip:
- This ruling proves once again that VWA checks compliance
with the Tobacco Act strictly. It is therefore important for
every company to have an effective smoking ban in the workplace
for both employees and managing directors, also for smoking in
their own offices.