A recent employment tribunal case has highlighted how important it is for employers to ensure that the use of electronic cigarettes or vaporisers is included in their smoking policy if they intend the same consequences to apply.
Use Of E-Cigarettes / Vaporisers At Work
Facts of the case
The employment tribunal in Insley v Accent Catering considered a claim by a school catering assistant that she had been constructively dismissed by her employer further to her using an e-cigarette.
Ms Insley was employed by Accent Catering working as a catering assistant at a secondary school. The head teacher of that school reported Ms Insley to her employer complaining that she had been seen using an e-cigarette in full view of pupils.
Ms Insley was suspended pending a disciplinary hearing to determine an alleged act of gross misconduct. She resigned just before the hearing.
Ms Insley brought a claim for constructive unfair dismissal in the Employment Tribunal. The Employment Tribunal dismissed Ms Insley’s claim, holding that the employer had acted reasonably and properly in the circumstances.
The tribunal confirmed that it could not decide the question of whether or not Ms Insley’s actions amounted to gross misconduct, justifying dismissal because Ms Insley had resigned and had not been dismissed. However the Tribunal commented that the school’s smoking policy would have been relevant to an unfair dismissal claim.
On considering the school’s smoking policy, it prohibited smoking on school premises, but did not refer to (or prohibit) the use of e-cigarettes. Consequently, if Ms Insley had been dismissed, she could have argued that it was unfair to dismiss her as using an e-cigarette was not expressly prohibited on school premises.
Comment
One may say that reference to ‘smoking’ in legislation and in existing smoking policies should ordinarily cover using e-cigarettes. However this is not the case due to the definition of smoking in legislation which refers to lit tabacco or any other substance that can be smoked when lit. Employers should therefore ensure that direct reference is made in smoking policies as well as disciplinary rules to the use of e-cigarettes. Employers will need to determine whether they wish to treat the use of e-cigarettes in the same way as smoking conventional cigarettes and if not consider the consequences of this. This information will then need to be included specifically in the relevant policies and rules.
Clearly the same health concerns surrounding smoking cigarettes does not apply to the use of e-cigarettes. However, e-cigarettes are coming under increased scrutiny because of emerging concerns for users and those exposed to the vapour that is emitted. Employers may well wish to support staff who are trying to give up smoking conventional cigarettes and so who are using e-cigarettes to assist them in this process but employers will need to consider a policy on regulating the use of e-cigarettes in the workplace generally and document this accordingly.
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