E-cigarettes in the workplace: first vaping tribunal decision is a warning for employers

E-cigarettes in the workplace pose a difficult question for UK employers. Should you treat them as if they are cigarettes or have different rules for their use? A recent UK employment tribunal case has highlighted how important it is for employers to ensure that the use of electronic cigarettes or “vaping” is included in their smoking policy.

The employment tribunal in Insley v Accent Catering considered a claim by a school catering assistant that she had been constructively dismissed by her employer.

The headteacher of the secondary school where the catering assistant, Ms Insley, was working complained to her employer, Accent Catering, that he had seen her using an e-cigarette at the beginning of the school day in full view of pupils.

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.

The tribunal stressed that, because Ms Insley had resigned, and not been dismissed, it could not decide the question of whether or not her actions amounted to gross misconduct, justifying dismissal. The tribunal indicated that the school’s smoking policy would have been relevant to an unfair dismissal claim.

The school’s smoking policy prohibited smoking on school premises, but did not prohibit the use of e-cigarettes. If Ms Insley had 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.

Felicity Alexander, employment law editor at XpertHR, explained: “The 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 or ‘vape’ and this is produced from a heated solution containing nicotine.

“Employers cannot therefore rely on the legislation or their own policies that prohibit smoking to control the use of e-cigarettes in the workplace or to take disciplinary action for using e-cigarettes.”

E-cigarettes are coming under increased scrutiny because of emerging concerns as to the health benefits for users and those exposed to second-hand vapour. A 2014 report prepared for Public Health England concluded that the hazards of using e-cigarettes and being exposed to second-hand vapour are likely to be extremely low.

A World Health Organisation paper similarly concluded that e-cigarettes were less harmful than conventional cigarettes, but cautioned that the vapour emitted by e-cigarettes is not merely “water vapour” as frequently claimed, but a vapour containing nicotine and other toxic particles.

Alexander said that, although employers may wish to support cigarette smokers who switch to e-cigarettes, regulating the use of e-cigarettes in the workplace may be the best option to safeguard the health of all employees. This is in line with advice from the British Medical Association.

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“Another factor to consider is that, until 2016, there are no controls over the content of e-cigarettes, so the toxicity and odour of the vapour from e-cigarettes may vary between different products,” Alexander said.

A full case report and practical tips for employers on e-cigarettes in the workplace is available on XpertHR.