An employee has complained about a colleague who used an e-cigarette during a meeting with her; she asked him to stop but he refused. He says we can't ban him from using ecigarettes in the workplace, as he is trying to stop smoking, and there is no legislation which bans e-cigarette use at work or in public places.

We don't have a company policy on e-cigarettes. This is the first time the issue has been raised. What issues should we consider and what should we do if we do decide to ban ecigarettes?

Increasingly, employers are faced with this, or a similar, situation where employees are starting to complain about colleagues using e-cigarettes at work.

Issues for employers to consider

Although using e-cigarettes in the workplace is not prohibited and employers do not have to ban the use of ecigarettes, they equally do not have to agree to e-cigarettes being used. Ultimately, whether or not e-cigarette use in the workplace is permitted will be for the employer to decide and enforce through its internal policies. They must decide which approach best fits with the ethos of the organisation.

Employers have a general duty to protect the health, safety and welfare of their workers and are expected to do whatever is reasonably practicable to achieve this. Although there is no research yet on the long-term health effects of e-cigarette use, concerns have been raised about possible side effects from vapour emissions from e-cigarettes both for the user and passive users. Notably, the British Medical Association (BMA) and World Health Organisation (WHO) have recommended that the use of e-cigarettes at work and in enclosed public places should be banned. The BMA has advised that, as an interim measure, employers should implement policies banning the use of ecigarettes in the workplace and a number of workplaces, including the House of Commons and the BBC, have already banned them.

Although some e-cigarette users are likely to try to persuade their employer that they should be allowed to use ecigarettes in the workplace to help them give up smoking, this will inevitably be an issue for some of their colleagues, particularly if they are pregnant, are trying to give up smoking or are concerned about the impact of the vapour from e-cigarettes on their health.

Some employers will also be concerned about the way e-cigarettes impact on the company’s professional image and brand, especially where clients or members of the public come into the working environment. For these employers, the decision will usually be clear-cut.

A reason why some employers may decide to ban e-cigarettes is that they can look like real cigarettes, which makes the smoking ban difficult to police. Although there has not yet been an Employment Tribunal decision involving dismissal for using an e-cigarette at work, there is a well-publicised dispute involving the driver of a waste-disposal vehicle, who has reportedly brought an unfair dismissal claim. He was summarily dismissed for smoking while operating a waste-disposal vehicle at work. He claims, however, that he was not smoking, but was using an e-cigarette.

Some organisations may decide to monitor the scale of e-cigarette use and not to ban e-cigarettes at this stage. If so, you could require employees to get their line manager's agreement before using e-cigarettes at work.

Steps to take for employers banning e-cigarettes

Before introducing new rules, employers should first consult with any employee consultative body, and they should also ensure that all employees understand what the new rules mean for them.

Your policy on e-cigarette use at work could include:

  • An express ban of the use of e-cigarettes in the workplace, in company vehicles and at any client locations where your employees are working.
  • The rationale for banning e-cigarettes, for example that:
    • e-cigarettes produce a vapour that could be an annoyance or even a potential health risk to other employees, especially employees who have certain health conditions
    • some e-cigarette models, particularly from a distance, look like real cigarettes which makes a smoking ban difficult to police
    • you want to ban anything that creates the illusion of smoking
  • If employees fail to comply with the e-cigarette policy, this may result in disciplinary action.
  • Since the smoking ban was introduced, smoking has been associated with break times rather than work time. If employers ban the use of e-cigarettes at desks, this is likely to result in more workers taking breaks. Employers are not obliged to allow smoking breaks in addition to the usual breaks during the working day, so you could implement a policy that prohibits additional breaks during the working day, leaving employees to use e-cigarettes or smoke during their usual breaks and outside working hours. You could state in the policy that any unauthorised or excessive e-smoking breaks may result in disciplinary action.
  • Before charging an e-cigarette at work, the charger should be checked and certified by the facilities department.

Employers may also need to update their Health and Safety policy to cover the use of e-cigarettes.

There are also practical steps you could take to support employees who are using e-cigarettes to try to stop smoking. You could consider providing e-cigarette users with an outdoor space which is separate from any space used by smokers. Giving up smoking is difficult and employees often need support to succeed, so employers can help them by making information about support groups available to them.