February 25, 2015

E-cigarettes in the office is becoming a burning issue

Some UK employers have already banned employees from using e-cigs at their desk – but should all work places do this?

A recent Employment Tribunal case highlighted the importance of employers ensuring that the use of e-cigarettes or ‘vaping’ is included in a smoking policy.

The Tribunal in Insley v Accent Catering considered a claim that the employee had been ‘constructively dismissed’ by her employer. Ms Insley had been seen her using an e-cigarette at the school where she worked in full view of pupils.

She resigned just before a disciplinary hearing was arranged by her employer to decide if her actions were serious enough to justify dismissal. The Tribunal dismissed her claim of constructive dismissal, holding that the employer had acted properly in inviting her to a disciplinary hearing.

The Tribunal stressed that, as Ms Insley had resigned, and not been dismissed, it could not decide the question of whether or not her actions amounted to gross misconduct, justifying dismissal.

The Tribunal indicated that the school’s smoking policy would have been relevant to an unfair dismissal claim.The school’s smoking policy prohibited smoking on school premises, but did not prohibit the use of e-cigarettes.

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.

The legislation prohibiting smoking in the workplace defines smoking as ‘lit tobacco or any other substance that can be smoked when lit’. E-cigarettes emit an aerosol that users inhale or ‘vape’ and this is produced from a heated solution containing nicotine.

Employers cannot therefore rely on the legislation or their own policies that prohibit smoking to control the use of e-cigarettes in the workplace or to take disciplinary action for using e-cigarettes.

E-cigarettes have come under scrutiny as to the health benefits for users and those exposed to second-hand vapour. A 2014 report prepared for Public Health England concluded that the hazards of using e-cigarettes and being exposed to second-hand vapour are likely to be extremely low.

Similarly, the World Health Organisation concluded that e-cigarettes were less harmful than conventional cigarettes, but cautioned that vapour emitted by e-cigarettes is not merely “water vapour” as frequently claimed, but a vapour containing nicotine and other toxic particles.

Another matter to consider is that, until 2016, there are no controls over the content of e-cigarettes, so the toxicity and odour of the vapour from e-cigarettes may vary between different products.

Employers may wish to support employees who switch to e-cigarettes. Regulating the use of these in the workplace may be the better option to safeguard the health of all employees.

If Ms Insley had not resigned and was dismissed for the allegations of using her e-cigarette, it would have been interesting to see how the Tribunal viewed the fairness of that dismissal.

One of the considerations which has been referred to in this article, is reference to a relevant policy.  It is therefore important that a relevant policy is in place to deal with the use of e-cigarettes in the workplace.

If you have any questions on subject or need any employment law advice, contact us.

By Jonathan Melia

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