The popularity of e-cigarettes means that employers will need to make decisions about when and where they can be used in the workplace. In general, employees now understand and accept that smoking tobacco is not permitted in the workplace. Legislation was introduced in 2007 to ensure almost all workplaces in England became smoke-free. However, the same health and safety legislation does not currently apply to the use of e-cigarettes and cannot be used to justify taking disciplinary action against e-cigarette vapers.

In the case of Insley -v- Accent Catering, the Employment Tribunal considered a claim brought by a school catering assistant alleging that she had been constructively dismissed by her employer.

The secondary school at which Miss Insley worked complained to her employer, Accent Catering, that she had been seen using e-cigarettes in full view of pupils. Her employer wrote to Miss Insley stating that a hearing would be arranged to decide whether her actions were serious enough to warrant her dismissal. Miss Insley resigned before the disciplinary hearing. 

Miss Insley’s Employment Tribunal claim alleged that her employer’s actions amounted to a fundamental breach of her contract. The Employment Tribunal dismissed her claim and held that the school had acted properly. It did not need to consider whether or not the school would have been justified in dismissing Miss Insley as she had resigned before that decision needed to take place. 

It would have been interesting to see what would have been the outcome if the school had dismissed Miss Insley for her use of e-cigarettes and she had brought a claim for unfair dismissal in response. The Tribunal in the constructive dismissal case said that had it been reviewing a decision to dismiss the school’s smoking policy would have been relevant. That policy did not prohibit or address the use of e-cigarettes. Therefore, presumably, there would have been a strong argument that any dismissal may have been unfair. 

The rising popularity of e-cigarettes has led to emerging concerns about their use. A report by Public Health England in 2014 concluded that the hazards of using e-cigarettes and the potential harm from being exposed to second hand vapour are likely to be extremely low. In addition, employers may consider that they should be supportive of the use of e-cigarettes as they assist people to quit smoking. On the other hand, a World Health Organisation paper concluded that while e-cigarettes were less harmful than conventional cigarettes, it is not merely ‘water vapour’ that is being omitted by the e-cigarette, but a vapour containing nicotine and other toxic particles.

The case above demonstrates that if employers do wish to prohibit the use of e-cigarettes in the workplace and take disciplinary action against employees who breach these rules, it should be reflected in their policies and procedures. It may not be enough to rely on a policy relating to smoking in the workplace to take disciplinary action against those using e-cigarettes. A clear policy setting out when and where e-cigarettes can be used will help clarify these issues and support employers if they need to take action.