In January last year, we looked at the issue of e-cigarettes and how employers should tackle the rise in their use. Since then they have become more and more popular, with latest statistics suggesting that over two million adults in the UK currently use e-cigarettes. An employment tribunal has recently had to decide what we believe to be the first case concerning the use of e-cigarettes.
In the case of Insley v Accent Catering the tribunal had to consider a claim brought by a school catering assistant that she had been constructively dismissed after she resigned in response to being invited to a disciplinary hearing, which had been convened to consider allegations against her relating to her use of an e-cigarette in front of pupils.
The tribunal dismissed the claim, holding that the employer had not breached the employee's contract of employment by initiating disciplinary proceedings. The tribunal made it clear that it was not being asked to consider whether or not the claimant's actions constituted gross misconduct but it clearly indicated that the school's smoking policy would have been highly relevant to the matter had it been an unfair dismissal claim. It was noted that the school's smoking policy did not expressly forbid the use of e-cigarettes. It is therefore possible that had Ms Insley been dismissed, her dismissal might have been unfair on the basis that "vaping" (as using e-cigarettes is known) is not the same as smoking; in particular it does not meet the statutory definition of smoking as set out in the anti-smoking legislation. The school's policy banned smoking but did not address the concept of vaping.
This case provides a useful reminder to employers that, with the rise of e-cigarettes, thought will need to be given to how they wish to approach the issue. As set out in our previous article, Acas has produced guidance on the topic that raises a number of interesting points. What is clear is that employers must consider their approach to e-cigarettes and amend any relevant policies accordingly. If an employer wants to retain the right to dismiss a worker for using an e-cigarette in the workplace or in front of customers (or pupils as in this case) then the relevant policy should make that clear.