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Support/Care worker - Second-hand cigarette smoke at work


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Hi there

I am a Support Worker employed by a city council.

I support someone with a very mild learning difficulty, but they are totally independent.

 

 

They are able to cook, clean, self-travel, etc. by themselves, and our team is present 24 hours a day to ensure the service user does not make unsafe decisions about relationships, or get in trouble with the police for anti-social behaviour.

 

They live in reasonably small, modern 2 bedroom flat on the 4th floor.

The single bedroom is designated as the staff sleepover room.

The flat is owned by a housing association, which the city council then rents.

Therefore, the service user is not directly the tenant.

 

We do not have guardianship of the service user.

 

My question:

The service user is a smoker of around 110 to 20 cigarettes/day.

They choose to smoke inside their bedroom

- sometimes with an open window but often fully closed up,

particularly at this time of the year.

 

 

If they are smoking in their bedroom, the smoke can be smelled by staff in the sleepover room - even with an open window.

 

We have been told we have the right to leave their flat for 1 hour if the service user starts smoking. Upon re-entering after 1 hour, the smell of smoke is still noticeable.

 

I understand 2nd hand/passive smoking is dangerous as its unfiltered, can linger in the air for many hours and the dangerous stuff is invisible.

 

As I am working 12+ hour shifts each day in this environment, what rights do I have as a non-smoker? Should I join a union?

 

Many thanks

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No offence but this is not a "Service User" but a human being we are talking about

 

But to answer your question you are entiled to be in a smoke free atmosphere and not subjected to second hand smoke. In my opinion this 1 hour business is non applicable as the legislation is specific.

 

Again in my opinion it is managements responsibility to do a risk assessment when notified and then put in control measures to limit any risk to staff.

 

What i would do is request to be allocated a non smoker and a staff member who smokes can then take responsibility for this individual.

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I have to admit that I am perplexed as to why someone with very mild learning difficulties warrants 24/7 support.

Don't they have the same rights as everyone else to make daft decisions about relationships?

You don't need a learning difficulty to do that.

If they are competent otherwise to conduct their life as they wish, is this not something of overkill on support?

But that is by the by.

 

I assume that this is deemed to be this persons home, not a residential setting or care home?

In which case the employer has adopted the recommended guidance for workers in this situation

- but they are only guidance.

 

 

It is simply not possible to tell someone how they must act in their own home.

I don't think you can get any resolution of this matter.

 

 

Either the council must decide this person does not get support,

or they reallocate the work, or they leave everything as it is.

That would be all they could do.

 

Have you spoken to your manager about this?

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Absolutely no offence taken. "Service user" is the preferred nomenclature. The people we support are not employees, nor customers. They pay for an agreed amount of support "service" hours per week, hence the term "service user". Obviously they are not animals, but human beings and this goes without saying.

 

This is a "forensic" case. Not everyone is supported because of additional needs, but because of risks posed to the public. There is a greater move towards this kind of service provision, and away from beds in secure wards in hospitals and prisons. I mentioned this as I thought it was relevant to my question.

 

I have spoken to my manager, but they told me an hour was sufficient for the smoke to dissipate. I disagree. I agree with you Sangie595 in that a person with capacity cannot be instructed in their own home, but by the same token, can I as an employee refuse to work in such an environment?

Edited by blackfriar
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risk of developing a smoking related disease like lung cancer from such a contact as yours is immeasuably small so i think you are being oversensitive to the risk to yourself and not sensitive to the client's needs. If they arent smoking in your presence the smell of smoking isnt going to change any.

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The Question if the risk is small or not is irrelevant to be honest. As an employee your welfare with risk assessments has to be conducted by the employer and recorded in a Safe System Of Work.

 

You conducted your own dynamic risk assessment and brought the conclusion to your employer

 

You were told to move away for an hour to limit risk, was this orally or in writing such as a letter or email?.

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Passive smoking can increase a non-smoker's risk of getting lung cancer by a quarter, and may also increase the risk of cancers of the larynx

 

Second-hand smoke can cause other health problems too, including heart disease, stroke and breathing problems.

 

Source the BMA and Cancer UK

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just ask Roy Castle...

please don't hit Quote...just type we know what we said earlier..

DCA's view debtors as suckers, marks and mugs

NO DCA has ANY legal powers whatsoever on ANY debt no matter what it's Type

and they

are NOT and can NEVER  be BAILIFFS. even if a debt has been to court..

If everyone stopped blindly paying DCA's Tomorrow, their industry would collapse overnight... 

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Passive smoking can increase a non-smoker's risk of getting lung cancer by a quarter, and may also increase the risk of cancers of the larynx

 

Second-hand smoke can cause other health problems too, including heart disease, stroke and breathing problems.

 

Source the BMA and Cancer UK

 

Thanks for that. Very useful. I will quote this to my manager.

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My manager verbally told me this after I voiced my concerns.

 

The service user is actually in a transition,

gradually moving out of a secure mental health ward (kept there under a compulsory treatment order) and into their own supported tenancy.

 

 

They are gently being introduced into the community and their flat on a daily basis, and will soon have a few overnight stays in their own flat with 24 hour, 1:1 staffing.

 

 

After these overnight trials have been successfully completed, they will then be formally discharged from the hospital and living in their own flat full time. We anticipate this will happen mid to late January, so there is plenty of time to sort this out.

 

Would anyone recommend joining Unison in light of this?

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Theres no reason why you shouldnt join a unision. Let me guess. Your employer is one of these private care companies that pop up everywhere?

 

Regardless, he should not be shrugging this off and saying " plenty of time to sort this out".

Any advice i give is my own and is based solely on personal experience. If in any doubt about a situation , please contact a certified legal representative or debt counsellor..

 

 

If my advice helps you, click the star icon at the bottom of my post and feel free to say thanks

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That is the problem right there, verbal from your manager which can be later denied. You need to put your concerns into writing for which they have to respond in writing.

 

You need a paper trail to show you brought these concerns to your manager, if he ignores you go direct to the employer/HR

 

The statutory duty is with the employer

 

Management of Health and Safety at Work Regulations 1999

http://www.legislation.gov.uk/uksi/1999/3242/regulation/3/made

 

Risk assessment

 

3.—(1) Every employer shall make a suitable and sufficient assessment of—

 

(a)the risks to the health and safety of his employees to which they are exposed whilst they are at work; and

 

(b)the risks to the health and safety of persons not in his employment arising out of or in connection with the conduct by him of his undertaking,

 

Then we have the Health and Safety at Work Act 1974

 

https://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=4&cad=rja&uact=8&ved=0ahUKEwjTw5jFvY3RAhWFbxQKHehfB7UQFggvMAM&url=http%3A%2F%2Fwww.legislation.gov.uk%2Fukpga%2F1974%2F37&usg=AFQjCNEz22OD4sMsODc35ncNqt1FGRRClQ&sig2=MWZcl9eDo9cjeSss59e3yw&bvm=bv.142059868,d.d24

 

2 General duties of employers to their employees.

 

(1)It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

Edited by obiter dictum
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As stated more than once, your personal health and safety is paramount here. You are fully entitled to either reduce the risk to yourself by having the building fully ventilated prior to you entering, or to remove yourself from the threat by refusing this particular assignment.

 

The employer should also have a Risk Assessment in place which covers this situation and it should confirm the above - either mitigate the risk, remove the risk, or remove oneself from that risk

Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

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CAN cause is the thing,

you have to look at the epidemiology and you will see that the risk of lung cancer from passive smoking when you are not living with a smoker is very small.

 

 

There is always a background for any type of disease.

Radon gas as a catalyst for lung cancer is 3 times more prevalent than passive smoking and that includes the numbers of people living with smokers

(those who are categorised as passive smokers in most studies).

 

 

There is also airborne pollution, genetic mutations etc.

I am not saying that you should ignore someone smoking when you visit but expectations of ventilation and how his house smells an hour later have to be realistic.

 

 

If you need to cross the road for work purposes do you build a high wire and receive training as an acrobat to cross high above the traffic or do you use the green cross code when crossing on the tarmac?

 

 

The former will eliminate any possibility of getting run over but may not be that practical and the consequence of falling is certain.

 

 

The law says "as far as reasonably practicable" not eliminate any possiblity, however small.

etc

 

 

Passive smoking can increase a non-smoker's risk of getting lung cancer by a quarter, and may also increase the risk of cancers of the larynx

 

Second-hand smoke can cause other health problems too, including heart disease, stroke and breathing problems.

 

Source the BMA and Cancer UK

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The individual concerned also has an absolute right to smoke in his own dwelling, so the OP's lawful rights are limited to the premises being adequately ventilated well before the visit, or to be assigned to other tasks - that is the mitigation of any risk

 

The OP, or the employer cannot insist that the individual ceases smoking

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Any advice given is done so on the assumption that recipients will also take professional advice where appropriate.

 

PLEASE HELP US TO KEEP THIS SITE RUNNING

EVERY POUND DONATED WILL HELP US TO KEEP HELPING OTHERS

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If I have been helpful in any way - please feel free to click on the STAR to the left!

 

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The individual concerned also has an absolute right to smoke in his own dwelling, so the OP's lawful rights are limited to the premises being adequately ventilated well before the visit, or to be assigned to other tasks - that is the mitigation of any risk

 

The OP, or the employer cannot insist that the individual ceases smoking

I agree entirely. The employer has already complied with the guidance agreed by the unions for these circumstances. Which means that even being assigned to another task is not a right, and the employer could refuse. If they do so, the OP is placing themselves at risk of frustrating their employment contract, or disciplinary action - refusing to do the allocated work when no other alternative is available.

 

Unfortunately, within personal care settings such as this there will often be conflicts between the choices of the client and the choices of the care worker or support worker. The best that can often be achieved is a compromise. And that may be the only option here.

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Might i ask "What guidence from which Trade Union and a link please

 

The employee has an absolute right to decline a management instruction where they perceive an immediate danger to their health and safety. Section 100 Employment Rights Act 1996

Edited by obiter dictum
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Might i ask "What guidence from which Trade Union and a link please

 

TUC says it's not covered by the health act.

 

http://smokefreeengland.co.uk/files/guidance-for-people-working-in-the-home.pdf

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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Might i ask "What guidence from which Trade Union and a link please

 

The employee has an absolute right to decline a management instruction where they perceive an immediate danger to their health and safety. Section 100 Employment Rights Act 1996

 

Of course you may ask. You may take your pick. Here is UNISON's - but exactly the same guidance applies to all unions with workers in a care setting, whether local authority or NHS. Check the section on Exemptions.

 

https://www.unison.org.uk/content/uploads/2015/03/TowebSmoking-at-Work-Information-Sheet2.pdf

 

And since second hand smoke is not an IMMEDIATE danger to health and safety, the ERA does not apply. An immediate danger is the roof falling on your head or standing in front of a speeding vehicle - not second hand smoke in a ventilated setting from an hour ago.

 

If the OP declines a management instruction then they will be doing so without any support from the law, and may be subject to further actions.

 

And before you say anything - no I am not a smoker; no I do not like the smell of smoke particularly although I do on occasion agree to people smoking when I have to meet with them in their own homes (because of circumstances); and no I am not an "apologist for the right to smoke".

 

As I said previously, this circumstance must be about compromise. And if the OP goes in to their employer making demands and quoting legal rights that they do not have, then they are putting themselves at risk of disciplinary action.

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Many thanks for the link with a credible source

 

Learned something new today

 

me too!

Never assume anyone on the internet is who they say they are. Only rely on advice from insured professionals you have paid for!

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Well, I put the fact I was unhappy in writing to my management. I also stated the current situation (leaving the flat while s/u smokes) means the service user is unmonitored for a period of time, which puts the public at risk.

 

My manager responded and said I was entitled to work elsewhere in a non-smoking environment.

 

This is in Scotland not England, btw.

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