Are people allowed to use e-cigarettes in the workplace?

One problem that we sometimes encounter is that UK law is often not prescriptive, in this case I’m not sure that it would state anywhere “thou shall not vape”.

It is often difficult to determine what the law expects of us until we are told more explicitly e.g. in coming to a conclusion a judge may set a precedent.

The following is taken from a business advice letter produced by Sage:

“First “vaping” case clarifies the use of e-cigarettes at work

Since the smoking ban came in, it’s likely that you haven’t had to deal with cigarettes in the workplace very much. However, the use of electronic cigarettes, known as “vaping”, has become increasingly popular, so it may be time to clarify and update your policies.

E-cigarettes emit an aerosol produced from a heated solution containing nicotine that users inhale, and so their use can’t really be described as “smoking”.

A UK employment tribunal recently considered a case involving a school catering assistant who claimed that she had been constructively dismissed by her employer.

The catering assistant, Ms Insley, was seen using an e-cigarette at the beginning of the school day in full view of pupils by the school’s head teacher. The head teacher complained to her employer, Accent Catering, but Ms Insley resigned just before a disciplinary hearing was arranged by her employer to decide if her actions were serious enough to justify dismissal.

The tribunal dismissed her claim of constructive dismissal, holding that the employer had acted properly, because Ms Insley had resigned, and not been dismissed. The tribunal could therefore not decide the question of whether or not her actions amounted to gross misconduct, justifying dismissal.

However, the tribunal indicated that the catering company’s smoking policy would have been relevant to an unfair dismissal claim. The smoking policy prohibited smoking on school premises, but did not prohibit the use of e-cigarettes. Had Ms Insley been dismissed, she could have argued that it was unfair to dismiss her as using an e-cigarette was not expressly prohibited on school premises.

All of this means that if you want to regulate the use of e-cigarettes at your business, you’ll need to update your smoking policy to include their use.”

Does this employment tribunal set any kind of precedent? Perhaps.

In any event this looks like sound advice. Thank you Sage.

Let’s get together and talk about this and other similar things.