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E-cigarettes in the Workplace – No smoke without fire?

Whilst the perception is that e-cigarettes can be used anywhere, more and more food outlets and leisure venues are banning usage on their premises. Organisations including Starbucks, the Royal Opera House and Claridge’s hotel are treating ‘vaping’ in the same vein as smoking. Rail and bus companies including Transport for London have also followed suit. Smoking an e-cigarette, however, is currently legal in public places. Although it contains nicotine, there is no burning and only odourless steam is produced.

E-cigarettes can be used by smokers as a substitute for tobacco products. The marketing of e-cigarettes gives the impression that they can be used anywhere, including vaping in the workplace, and that they do not have the same harmful effects as smoking.

A recent UK employment tribunal case has highlighted how important it is for employers to ensure that the e-cigarettes are included in their smoking policy. The employment tribunal was considering a claim by a school catering assistant that she had been constructively dismissed for using an e-cigarette at the beginning of the day in front of pupils. The assistant resigned before her disciplinary hearing, so the court could not decide the question of whether it was an act of gross misconduct, justifying dismissal. But importantly for employers, the tribunal indicated that the school’s smoking policy would have been relevant to an unfair dismissal claim. The use of e-cigarettes was not specified in the school’s smoking policy.

If following her disciplinary, the assistant had been dismissed, she could have argued that it was unfair to dismiss her because using an e-cigarette on school grounds was not part of the school’s policy.

This serves as a timely warning to consider your position on e-cigarettes and ensure that your policies are up to date, clearly setting out any prohibition on e-cigarettes.

Why should employers consider banning the use of e-cigarettes? Some of these models look like real cigarettes, making a smoking ban hard to enforce and giving the impression that it is acceptable to smoke. In addition, provisions in the Health Act 2006 more than cover your right to ban them in the workplace. Medical opinion is split on the harmful effects of e-cigarettes, so there is a duty of care to the rest of your workforce. This article sets out some considerations

There has been warning that some of these products may be regulated as medicines in the future. So make sure you stay on top of the developments of ‘vaping’ by keeping in touch with the HR Dept. Why not sign up to our newsletter today? Give us a call if you need your smoking policies updated too.