In one of the first cases concerning the use of e-cigarettes in the workplace, an Employment Tribunal has found in Insley v Accent Catering that a school catering assistant who resigned ahead of a disciplinary hearing for “bringing the company into disrepute by smoking an e-cigarette on school premises in full view of the students” had not, on the facts, been constructively dismissed.

Of greater interest for employers is that the Employment Judge went on to comment that had the employee not resigned when she did but had then been dismissed, the dismissal may well have been unfair because CCTV footage concerning the incident had not been shown to the claimant and, more significantly, the school did not have a policy on the use of e-cigarettes.

Action Point:

Whilst Employment Tribunal decisions are not binding on other Courts and Tribunals, the decision is a timely reminder to all employers that if they have not already done so, they should update their no-smoking policies to include the use of e-cigarettes.

The Advisory, Conciliation and Arbitration Service (Acas) has published guidance for employers on the use of e-cigarettes in the workplace.