Employees using e-cigarettes at work – is this covered under no smoking rules?

With the increasing use of e-cigarettes you should consider your position regarding their use or restriction in the workplace.

This has recently been discussed at the Employment Tribunal in the case of Insley v Accent Catering where a catering assistant was observed smoking an e-cigarette on school premises, in view of pupils. The school considered this to be a gross misconduct offence, and she was invited to a disciplinary hearing, charged with bringing the catering company into disrepute by smoking an e-cigarette, but the employee resigned before the hearing could take place.

A claim for constructive dismissal by the employee failed as it was held that there had been no breach of mutual trust and confidence because the employer had "reasonable and proper cause" for taking disciplinary action in this instance.

However, while the employer regarded e-smoking to be the equivalent of smoking, the employee had not been informed of the rule allegedly broken, because there was no rule in place banning the use of e-cigarettes. The only potentially relevant policy in place was the no-smoking policy. Had the employee attended the disciplinary hearing and been dismissed for gross misconduct it would then have been very interesting to see what the Tribunal would have decided! It is likely that the dismissal would have been unfair as the employee had not been advised of the rule.

E-cigarettes are not covered by the law on smoking and there is no legal requirement to ban them at work. If you wish to restrict, or even ban e-cigarettes, a clear policy on this is imperative, further this will need to be communicated to employees and visitors or third parties on your premises. 

To discuss changes to your smoking policy please contact us on 01245 261883