Legal Q&A: E-cigarettes in the workplace

Woman using an e-cigarette

Victoria Clark, associate at Clarion, answers employers’ questions on how to deal with the use of electronic cigarettes in the workplace.

Q: What is the legal position on e-smoking at work?

Smoking indoors at work premises and other enclosed spaces in England became unlawful on 1 July 2007. The ban applies to all substances that can be smoked, including cigarettes, herbal cigarettes, cigars and pipes.

Whatever form it takes, the act of smoking requires a substance to be burnt. Electronic cigarettes or e-cigarettes give off a vaporised water-based mist, but do not contain any burning substances. Therefore, strictly speaking, they do not fall within the smoking ban. Perhaps this is why e-cigarettes are so popular and traditional smoking is at an all-time low.

The significant take-up of e-smoking has prompted a government debate over the past few weeks, and it seems that there are now plans to make illegal the sale of e-cigarettes to under-18s, or to adults on their behalf. This is largely because the effects of e-smoking are unclear.

The new rules are expected to be in force by autumn 2014, making it a good time to re-assess your workplace rules on smoking.

Q: We don’t have a policy that prevents staff from using e-cigarettes in the office. We’re starting to get complaints from non-smoking staff about the vapour. What should we do?

The law does not prevent you from implementing a policy banning the use of e-cigarettes at work. If you are minded to do this, it is best to have a clear written policy in place so that there is no confusion over what is, and what is not, allowed.

Any smoke-free policy, whether it extends to e-cigarettes or not, should apply to staff of all levels without exception and even to third parties such as customers, visitors and contractors.

Q: Staff who are trying to quit smoking by using e-cigarettes are complaining that they will struggle if they’re forced to use e-cigarettes in the same area as tobacco smokers. Do we have to provide a separate area for e-smokers?

First of all, the law does not require you to provide a smoking area at all. There are a couple of ways to approach the issue and it is important to give consideration to the most suitable option for your workforce.

If you choose to designate an area for tobacco smokers, as most employers do, you must make sure that it is legally compliant – it can not be enclosed or substantially enclosed, and the smoke must not be able to enter the rest of the workplace. It is also sensible to provide waste bins for the disposal of cigarette ends and other litter.

If you are willing to designate a separate area for e-smokers, which is less common and not compulsory, these strict requirements will not apply. You should give some thought to the most suitable e-smoking arrangements for your workforce to minimise the chances of receiving complaints from tobacco smokers and/or non-smokers.

One particularly robust option is to prohibit workplace e-smoking and smoking altogether. Although this is a very restrictive approach, some employers wishing to depict a professional public appearance have successfully banned workers from doing so both inside and anywhere nearby their premises.

Q: Some of my e-smoking staff have complained that they don’t get as many breaks as tobacco smokers. What should I do?

Employers are not obliged to allow smoking breaks in addition to the usual work-day breaks, and there is increasing evidence that they disrupt productivity and hinder performance, as well as upsetting non-smokers who may miss out.

If this is a problem for your business, you might wish to implement a policy that prohibits such additional “comfort” breaks during the working day – leaving employees to use e-cigarettes or smoke during their usual breaks and outside working hours.

Some employers ask e-smokers and smokers to make up any time spent on additional breaks during work hours, but the success of this very much depends on the workplace environment, industry and culture.

Usually, the best option is to allow some flexibility where appropriate but to be firm and consistent where the boundaries are tested by staff.

Q: Can I dismiss an employee for smoking an e-cigarette at work?

There has not yet been a legal case involving dismissal for using an e-cigarette at work, although a well-publicised dispute involving the driver of a waste-disposal vehicle may well be the first one.

The driver was summarily dismissed for, allegedly, smoking while operating a waste-disposal vehicle at work. He claims that it was an e-cigarette and that he did not know he could not use it when he was on duty.

His employer found against him at both the disciplinary hearing and appeal stage.

It seems the driver concerned continues to dispute the legal fairness of his dismissal and intends to pursue an employment tribunal claim. If lodged, the case will apparently be funded by the driver’s preferred e-cigarette maker, which is unprecedented.

The main point here, though, is that as long as you have a clear and consistently applied policy providing that e-smoking and smoking at work is prohibited and may be treated as gross misconduct, and you follow a fair and reasonable process, you will be entitled to dismiss.

If you are ever in any doubt about what to do, the best option is to take specialist legal advice before taking any action.

A model smoking policy, which covers the use of e-cigarettes, is available on XpertHR.

Victoria Clark

About Victoria Clark

Victoria Clark is an associate in the employment team at Clarion
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