Should Smoking Policies Include the Use of E-Cigarettes?
A recent employment tribunal ruling has highlighted the need for employers to consider whether the use of electronic cigarettes (e-cigarettes) should be included within their smoking policies.
Currently the legislation prohibiting smoking in the workplace defines smoking as lit tobacco or any other substance that can be smoked when lit. This is different to e-cigarettes which emit an aerosol that users inhale and which are therefore not included in the legislation.
In the case Insley v Accent Catering, a head teacher complained to the catering company (Accent Catering) providing services to her secondary school when she saw a catering assistant, Ms Insley using an e-cigarette at the beginning of the school day in full view of pupils. Whilst the school’s smoking policy prohibited smoking on the premises, it did not prohibit the use of e-cigarettes.
Ms Insley was invited to attend a disciplinary hearing into the matter by her employer, but resigned before the hearing took place and before her employer had an opportunity to decide if her actions were serious enough to result in dismissal. Ms Insley subsequently brought a claim for constructive dismissal.
The tribunal dismissed Ms Insley’s claim of constructive dismissal stating that because Ms Insley had resigned and had not been dismissed, it could not decide whether her actions amounted to gross misconduct or not. The tribunal confirmed that the employer had acted appropriately. However, if Ms Insley had been dismissed, she could have argued that it was unfair, as the use of e-cigarettes was not expressly prohibited on school premises. In such a circumstance the school’s smoking policy would have been relevant to the claim.
This ruling has highlighted the need for employers to be clear on their tolerance of e-cigarette use, as they cannot rely upon a policy which prohibits smoking at work to extend to e-cigarettes without expressly detailing so. This focus is all the more urgent as e-cigarettes are coming under increased scrutiny, due to the highly publicised concerns surrounding the risks of e-cigarettes and the exposure to second-hand vapour, which includes nicotine and other toxic particles. Unfortunately, at present the health implications of e-cigarette use are unclear.
Current advice from the British Medical Association is that employers regulate the use of e-cigarettes in the workplace in order to safeguard the health of all employees. However, when deciding on whether to amend their smoking policy to include e-cigarettes, employers should consider whether vaping is in keeping with the image of their organisation, especially where they are client facing. Another consideration is whether the use of e-cigarettes in the workplace is going to undermine existing restrictions on smoking by ‘normalising’ smoking behaviour. An assessment of their workforce is also suggested to ascertain whether the vaping may upset other workers, such as pregnant women or those who are trying to stop smoking tobacco products. Ultimately, in order to ensure that they are as protected as possible, employers should ensure that their policy in this area is clear and is implemented fully.
If you would like some assistance on introducing or amending a smoking policy for your organisation, please call on 0845 127 1360 or email firstname.lastname@example.org and we will be pleased to assist.