E-cigarettes in the work place: Tribunal warning for Employers

18th February 2015

A recent case has highlighted the issues with using e-cigarettes in the workplace. In the case, a school catering assistant claimed that she had been constructively dismissed when she was suspended by her employer for using an e-cigarette on school premises.
Ms Insley, the claimant, resigned just before the disciplinary hearing, which had been convened to consider her conduct, was due to take place. The Employment Tribunal dismissed her claim, deciding that her resignation was not justified and she had therefore not been constructively dismissed.
Importantly this case is the first time that the issue of e-cigarettes has come before the Employment Tribunal. It was indicated that had Ms Insley been dismissed, the Tribunal might have judged that dismissal to be unfair. One point the Tribunal raised was that it was not clear that smoking e-cigarettes was a breach of any policy of the employer.
The current 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 and this is produced from a heated solution containing nicotine. Therefore, employers cannot rely on the legislation or their own policies that prohibit smoking cigarettes to control the use of e-cigarettes in the workplace.
For employers, the case highlights the requirement that e-cigarettes are expressly included in smoking policies. There is currently no legislation regulating the use of e-cigarettes in the workplace, so it is even more important that an employer decides its policy according to what is appropriate for its workplace environment. Employers must ensure their e-smoking and smoking policies are clear and consistently applied and in particular, that the consequences of breaching such polices are made clear.
For more information, please contact Simon Bond, Associate on 0845 111 5050.


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