Q&A

Smoking at home

Q. We have a freehold pub that we own and live in as our home. We have no staff. Could you please clarify the rules regarding smoking on the premises for licensees, ie, my husband only, when the pub is shut and not during licensed hours? We only have a bedroom upstairs as private accommodation for ourselves, so we have to use the pub area as our home when closed.

A. This is a more difficult problem than it appears to be at first sight. It is necessary to look at the various exemptions before deciding whether it is allowable for your husband to smoke in the bar when it is not open.

First of all, the private accommodation for pub licensees is not covered by the legislation, except where it is used for business purposes by non-residents, which is rarely the case. This means that pub owners can smoke in their own flat or rooms, as can their private guests. In smaller pubs such as yours, the bar may well be the only additional place for you to take your leisure time.

But, unfortunately, it is still covered by the provisions of the Health Act because it is "open to the public".

It is true that the Act also says that premises are smoke-free only when they are open to the public, except in specified circumstances, when they must be smoke-free all the time. But it appears that your bar fits in to both the conditions requiring a complete ban on smoking.

Firstly, the bar is used as a place of work by more than one person — you and your husband — even if you actually work at different times.

Secondly, members of the public do attend to receive goods or services, even if they are not always present.

The exemptions contained in the regulations with regard to private accommodation do not cover the bar, because its principal use is for the business of the premises. The fact that you use it for private purposes does not in itself change its character.

It seems as if your husband

will have to find another place

to smoke.

Secretary behind bar

Q. Can you advise us on a club matter? The secretary of this club is paid an honorarium per year, but works behind the bar on the steward's day off and during his holidays. The secretary is paid the same wage as the steward gets for this work. Is this legal?

A. Unless there is a specific club rule on the matter of elected officers working for payment in the club, then I can see nothing technically wrong with this arrangement.

The club secretary already receives payment for one aspect of the administration of the club. Although it is called an honorarium, it is in fact a salary or wage. It is not just to cover claimed expenses.

So he is, in reality, an employee of the club already.

If he does other work for the members, such as standing in for the steward, then this is an extension of his existing work, and no different in kind. He will be liable for tax and national insurance payments on all his remuneration, from whatever source it comes.

Some clubs make it a rule that officers or committee members cannot take any office of profit within the club. This then means they can make judgments and decisions about employment without having any interest in the issues. But this is clearly not the case in your club.

Correction

In my answer last week on signing away the security provisions of the Landlord & Tenant Act, I failed to acknowledge the change in the law that now allows this to be done by notice and acknowledgment, rather than the need for court approval. The procedure is now simpler, but the principles remain the same.