The rules regarding smoking in the workplace have been in place since 2006. However, as is so often the case, the development of technology has outpaced legislation and the introduction of e-cigarettes and ‘vaping’ poses a problem for employers.

E-cigarettes do not fall within the scope of the existing legislation and so there is no legal requirement for them to be banned in the workplace. Many employers do not realise this, and assume that e-cigarettes are covered in the same way as traditional ones. They would therefore rely on existing no-smoking policies. The decision of the Tribunal in Insley v Accent Catering demonstrates that this approach should itself come with a health warning.

In the Insley case, a school catering assistant was seen using an e-cigarette in full view of the pupils before school started. Ms Insley was on the school premises and seen by the head teacher. The head teacher complained to Ms Insley’s employer, Accent Catering.

A disciplinary hearing was arranged by the employer to consider Ms Insley’s dismissal, but she resigned before this took place. Ms Insley’s claim was therefore for constructive dismissal, rather than a straight-forward claim for unfair dismissal by the employer. As such, the Tribunal did not have to consider whether or not Ms Insley’s actions in using the e-cigarette amounted to gross misconduct. Although the claim for constructive dismissal was not upheld, the Tribunal indicated that the school’s smoking policy would have been relevant if Ms Insley had not resigned, but rather had been dismissed and brought an ordinary unfair dismissal claim. The Tribunal further commented that in that case it would have been relevant that Ms Insley could not be shown to have breached her employer’s no-smoking policy, as this policy did not extend to e-cigarettes.

Comment

The Tribunal’s findings suggest that existing legislation and no-smoking policies will not automatically be read as applying to e-cigarettes. It is particularly significant that the Tribunal indicated that it would take this approach, even in a case which involved a member of school staff who was expected to set an example to the children.

However, not all employers will want to exclude e-cigarettes from the workplace. Employers may feel, in the absence of medical opinion showing any dangers of passive vaping, that it is better for employees to stay in the workplace with an e-cigarette rather than take a break for a traditional one.

For those employers who do decide that e-cigarettes should not be permitted in the workplace, it is crucial that their no-smoking policy is amended to specifically include them.

Insley v Accent Catering ET/3200687/2014