E-cigarettes and employees

E-cigarettes in the workplace are a difficult issue for employers. Should you treat them as if they are cigarettes or have different rules for their use? Legislation prohibiting smoking in the workplace defines smoking as lit tobacco or any other substance that can be smoked when lit. E-cigarettes emit an aerosol that users inhale or ‘vape’ and this is produced from a heated solution containing nicotine. Employers cannot therefore rely on the legislation or their own policies that prohibit smoking to control the use of e-cigarettes in the workplace or to take disciplinary action for using e-cigarettes.

A recent case at the Employment Tribunal has illustrated the importance of employers ensuring the use of electronic cigarettes or ‘vaping’ is included in their smoking policy. In Insley -v- Accent Catering, the Employment Tribunal considered a claim by a school catering assistant that she had been constructively dismissed by her employer.

The headteacher of the secondary school where the catering assistant was working complained to her employer, Accent Catering, that he had seen her using an e-cigarette at the beginning of the school day in full view of the pupils. Ms Insley was asked to attend a disciplinary hearing to decide whether her actions were considered to be serious enough to justify dismissal. However, Ms Insley resigned before the disciplinary hearing. The Employment Tribunal dismissed her claim for constructive dismissal on the basis that Ms Insley’s employer had acted properly when asking her to attend a disciplinary hearing.

Whilst the Employment Tribunal was unable to decide whether Ms Insley’s actions constituted gross misconduct given her resignation, it indicated that the school’s smoking policy would have been relevant to an unfair dismissal claim. The school’s smoking policy prohibited smoking on school premises but did not prohibit the use of e-cigarettes. If Ms Insley had been dismissed, she could have argued it was unfair to dismiss her as using an e-cigarette was not expressly prohibited on school premises.

Given more people are switching from cigarettes to e-cigarettes, it is important that employers regulate the use of e-cigarettes in the workplace.

If you would like to find out more about this or any other employment issue, please contact me.

Kate Garrett
Solicitor

Head of Employment Law

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