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Smoking Policies - Do they cover e-cigarettes?

05/07/2016

With the increasing use of e-cigarettes, your position on their use or restriction is worth contemplation, if you have not done so already.

A tribunal case (Insley vs. Accent Catering) last year highlighted how important it is for employers to ensure that the use of electronic cigarettes or "vaping" is included in their smoking policy, if they want to ban it in the workplace.

In the case of Insley vs. Accent Catering, a catering assistant was observed smoking an e-cigarette on school premises, in view of pupils. The school considered this to be a gross misconduct offence, and she was invited to a disciplinary hearing, charged with bringing the catering company into disrepute by smoking an e-cigarette, but resigned before the hearing could take place.

A claim for constructive dismissal failed as it was held that there had been no breach of mutual trust and confidence because the employer had "reasonable and proper cause" for taking disciplinary action in this instance.

However, while the employer regarded e-smoking to be the equivalent of smoking, the employee had not been informed of the rule allegedly broken, because there was no rule in place banning the use of e-cigarettes. The only potentially relevant policy in place was the no-smoking policy. Had the employee attended the disciplinary hearing and been dismissed for gross misconduct it would then have been very interesting to see what the Tribunal would have decided! It is likely that the dismissal would have been unfair as the employee had not been advised of the rule.

E-cigarettes are not covered by the law on smoking and there is no legal requirement to ban them at work. If you wish to restrict, or even ban e-cigarettes, a clear policy on this is imperative, further this will need to be communicated to employees and visitors or third parties on your premises.

Fiona Haworth. You can contact Fiona on fiona@practical-hr.co.uk


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