More and more employers are deciding to prohibit the use of e-cigarettes in the workplace. However, if the employer’s ban on e-cigarettes in the workplace has not been communicated to employees this can lead to difficulties for employers when seeking to implement the ban. This has been highlighted in two recent UK cases where employees have alleged to have been victimised by their employers for using e-cigarettes. These cases are currently pending hearing.

In the first case a truck driver, who was on a final written warning, was dismissed after being spotted smoking an e-cigarette while in close proximity to flammable material. Interestingly, the employee in question is being supported in his unfair dismissals claim by E-Lites (the firm behind the manufacturing of the e-cigarette in question).

The second case concerns an employee of Mothercare who claimed to have been dismissed on-site after being seen smoking an e-cigarette on the shop floor. Although her employer claims that she was not dismissed but was, in fact, only suspended pending an investigation into other matters, the employee has publically stated that she felt ‘victimised’. She pointed out that there was nothing in the company’s handbook regulating the use of e-cigarettes and no signs existed on the shop floor banning their use.

Employers may seek to restrict the use of e-cigarettes in the workplace for various reasons including the fact that they contain nicotine (an addictive substance) and because other employees may be made uncomfortable by their use and the vapour emanating from them.

There is currently no law in Ireland prohibiting the use of e-cigarettes nor have there been any case law on the issue. Accordingly, the UK decisions will be of interest to Irish employers and employees.

Given the increasing popularity of e-cigarettes, best practice is for employers to revise their employee handbook to outline their policy in relation to e-cigarettes. The employer’s policy on e-cigarettes should also be clearly communicated to all employees.