The use of e-cigarettes, personal vaporisers and electronic nicotine delivery systems (ENDS) is on the increase and their use in the workplace presents considerable challenges for employers.
E-cigarettes are battery-operated devices that mimic tobacco smoking and are often used as replacements for traditional cigarettes. According to ASH (Action on Smoking and Health) around 2.1 million adults in the UK are currently using e-cigarettes. This raises the question of whether or not a Company’s smoking policy should distinguish between the use of traditional cigarettes and e-cigarettes.
The legal position
E-cigarettes fall outside the scope of smoke-free legislation because the act of smoking requires a substance to be burnt. This means that Companies can decide if they wish to allow employees to smoke at work or not.
Issues to consider
• Some employees use e-cigarettes as part of a plan to stop smoking so employers may want to support their use.
• The vapour from e-cigarettes could be annoying to other employees and may present a health risk for others through passive consumption. Research into e-cigarettes is at an early stage and so employers cannot be certain that they have no effect on other people working in the same room.
• Some e-cigarettes look very similar to real cigarettes so other employees and clients or customers may think that real cigarettes are being smoked in the workplace. Even if Companies decide to allow the use of e-cigarettes at work, it is probably advisable to require employees to obtain prior management approval so that line managers are at least aware of who may be smoking e-cigarettes in their teams.
• If employees are allowed to use a designated area to smoke e-cigarettes, should this be in the same area used by traditional smokers? Users of e-cigarettes may object to this, perhaps arguing that they are using e-cigarettes to stop smoking traditional cigarettes and having to stand with colleagues smoking traditional cigarettes may make this more difficult for them. Employers may wish to consider the creation of a separate e-cigarette smoking area.
The difficulties of managing staff who smoke e-cigarettes were highlighted in the recent case of Insley v Accent Catering. Insley was working as a catering assistant for a company providing school meals. The Head Teacher of the school where she was working saw Insley smoking an e-cigarette on the school premises where pupils of the school could easily see her. The Head Teacher complained to her employer, Accent Catering, and they invited Insley to a disciplinary hearing. Insley resigned before the hearing, claiming constructive dismissal and arguing that her employer had breached her contract of employment by their actions.
The Employment Tribunal found that the employer has not breached the contract of employment and had followed the Company’s disciplinary procedures fairly. However, the tribunal also noted that the Company’s no-smoking policy did not specifically address the use of e-cigarettes, only traditional cigarettes. The Tribunal strongly suggested, therefore, that it would not have been fair for the Company to dismiss for smoking an e-cigarette.
Clarity and consistency of approach
Whatever they decide to do, employers must be clear about what their rules are on the use of e-cigarettes and review existing policies accordingly.
The Simply-Docs Smoking Policy has been re-drafted to include a section on e-cigarettes, with alternative clauses to enable employers to find the approach that works best for them.
The contents of this Newsletter are for reference purposes only and do not constitute
legal advice. Independent legal advice should be sought in relation to any specific