The criminal law

Smoking in enclosed or substantially enclosed workplaces in England has been prohibited since July 2007 (under the Health Act 2006). It is an offence for employees to smoke in a "smoke free place" and an offence for employers to allow them to do so. Not surprisingly, therefore, most well drafted staff handbooks contain policies which make it clear when and where smoking is prohibited and when and where it is allowed.  Although there is as yet no decided case on the point, it is very doubtful whether the term "smoking" (as used in the Act) can correctly be applied to the use of "e-cigarettes" and as far as we are aware there have been no attempted prosecutions.

The use of e-cigarettes at work is, therefore, governed not by statute but by employment contracts and policies.

The burning issue

A smoker looking to kick the habit has never been short of alternatives, what with nicotine patches and nicotine gum lining the shelves of most major pharmacies. In recent years battery operated devices such as e-cigarettes, personal vaporizers (PVs) and electronic nicotine delivery systems (ENDs) have increased significantly in popularity.

These devices work by heating (but not setting fire to) a solution of nicotine. The heat creates a vapour of nicotine for the user to inhale. The user can choose from a variety of different flavours and scents from which to inhale or (to use the current jargon) 'vape'. A recent World Health Organisation paper concluded that e-cigarettes were less harmful than conventional cigarettes, but  warned that the vapour emitted is not merely water vapour, but vapour containing nicotine and other toxic particles. "Vaping" is largely unregulated. Until 2016 there will continue to be no specific controls over the content of e-cigarettes, so the toxicity and odour of the vapour may vary significantly between products.

E-cigarettes fall outside the scope of the Health Act 2006 because the act of "smoking" involves the inhalation of smoke generated by a substance that has been burnt – i.e. set on fire – not just heated. In our view therefore, employers can choose whether to allow employees to "vape" at work or not. However, with little evidence of the health effects of vaping, both direct and indirect (e.g. through passive vaping), concerns have arisen about the risks posed by vaping in confined workspaces. Moreover, both employers and employees may feel that vaping in the workplace creates an inappropriate or uncomfortable work environment in view of its close association with – and similarity to – the act of smoking.

What are the main problems?

The following problems can arise if work environment policies fail to make an employer's position on e-cigarettes clear:

  • grievances and/or constructive dismissal claims from employees who object to their colleagues' use of e-cigarettes;  
  • grievances and/or constructive dismissal claims from employees prevented from or disciplined for using e-cigarettes; and  
  • it will be harder to discipline or dismiss an employee fairly for using e-cigarettes, as "vaping" is not the same as "smoking" and no smoking policies cannot be relied on.  

There is of course also the risk of personal injury claims from employees who have inhaled vapours in workplaces which permit the use of e-cigarettes.

What should employers do?

Employers should review and update their policies and be clear what their position is on e-cigarettes.

Their position may of course be influenced by the industry in which the employer operates, the employer's workplace and its corporate philosophy and profile. Employers will need to consider whether allowing e-cigarettes in the workplace is consistent with the professional image they wish to project and whether it has a positive or a negative effect on teamwork and employee relations generally.

What have some employers done?

Some employers (e.g. Standard Life, Wal-Mart and General Electric) have banned the use of e-cigarettes at work. Some have sought to use it as a means of reducing cost (e.g. United Parcel Service charges smokers an extra $150 per month in health insurance premiums and has decided to make e-cigarette users pay the same). Some (e.g. McDonalds) allow both its customers and employees to vape in its stores and offices, and so draw a clear distinction between "vaping" and "smoking".

Case study: Insley v Accent Catering

The recent case of Insley v Accent Catering illustrates how problems can arise in the absence of a policy which expressly addresses the use of e-cigarettes.

The Claimant had been employed by the Respondent as a catering assistant in a school for a number of years. The Head Teacher of the school witnessed the Claimant "smoking" an e-cigarette on the school's premises in full view of students in a busy area. The school had a no smoking policy but this made no express reference to e-cigarettes. The Claimant was suspended, investigated and then told she would face a disciplinary hearing on the grounds that her use of an e-cigarette (1) was "considered to be the equivalent of smoking", and smoking was expressly prohibited; and (2) that using an e-cigarette in front of students was, in any event, likely to "bring the school into disrepute," given the similarity with smoking. Consequently, she faced summary dismissal for gross misconduct.

Before the disciplinary hearing, the Claimant (rather unwisely) resigned and claimed constructive dismissal, complaining that her treatment had been oppressive. The EAT rejected her claim. There had been no breach of trust and confidence. The judge observed, however, that had the disciplinary hearing gone ahead, and had the Claimant been dismissed, her dismissal "might have been unfair", as it was "not clear that smoking e-cigarettes is a breach of [the school's] policy." Interestingly, the Judge and, it seems, the parties, appeared to consider that e-cigarettes could be "smoked", despite the use of that term being scientifically inaccurate, and despite no allegation being made that either the employer or the employee were in breach of the Health Act 2006.

The need for clear policies

Regardless of whether an employer chooses to prohibit or permit the use of e-cigarettes in the workplace, it should have a policy in place which sets out clearly the rules on vaping at work. A few considerations of what should be included in a "vaping policy" are discussed below.

Employers will need to consider how far-reaching their policy will be. In particular, will it simply mirror existing no smoking policies or be more relaxed? New terminology for what constitutes "vaping" or "smoking" or "using" an e-cigarette will need careful thought and definition, and potential problem areas should be anticipated and dealt with – for example, will plugging an e-cigarette into a USB port on a work computer constitute a breach of an IT policy? Will it constitute prohibited use of an e-cigarette?

Employers should make clear to employees what penalties or disciplinary actions may be taken if they breach no vaping policies. For example, where an employee is caught "vaping" an e-cigarette in a prohibited area at work, or an employee takes an unauthorised or excessive number of "vaping breaks". ACAS has produced guidance suggesting factors to consider in whether to permit or not allow the use of e-cigarettes at work and having clear rules and policies.

What lies ahead?

As with all new policies, questions will arise over time following their implementation. For instance, what position will employers take in respect of vaping in the workplace for medicinal purposes (e.g. nicotine replacement therapy)? Or in respect of devices which don't produce any visible vapour or odour? Or which don't attempt to mimic tobacco cigarettes in terms of their shape or colour?

The key thing to bear in mind is that the employer has discretion in terms of whether it will permit e-cigarettes in the workplace and it will be up to the managers of the business to determine whether vaping in the context of a work environment is acceptable. Vaping mimics the act of smoking and in this respect can clearly be said to provide negative role modelling for some and especially young people. It is easy to understand why a Head Teacher could be concerned about vaping on school premises, in front of pupils. In contrast, vaping in an office which is inhabited only by the user (or jointly with a fellow user) could well be considered acceptable.

It should also be noted that vaping in the workplace does not have to be portrayed or perceived in a negative light. Employers may want to support their employees in achieving their goal to stop smoking and may allow their employees to vape at work on this basis. For instance, the CEO at Ebsco Spring Company bought vaping kits at $100 each and gave them to smoking workers for free.

To conclude, employers should ensure that they have (or introduce) policies which address the use of e-cigarettes by their employees, and that such policies are relevant to their business model, are consistent with their business image, goals and work environment and – above all – are well-defined and clear.