With the rise in use of e-cigarettes employers are facing issues with employees using them within the workplace. However, with health & safety legislation not covering e-cigarettes, employers are often left in a difficult situation.

Smoking in enclosed places

Smoking in enclosed (or substantially enclosed) public places, including workplaces was banned in July 2007. This legislation, however, does not apply to e-cigarettes as they do not appear to fall within the definition of “smoking” as set out in the legislation (which refers to “lit tobacco” or any other substance that can be smoked when lit). It would appear, therefore, that the employer may not rely on the current anti-smoking legislation to take disciplinary action against vaping at work.

Case law

To date, there has only been an Employment Tribunal decision which, of course, has no legal precedent. In Insley v Accent Catering, Ms Insley, a school catering assistant, was suspended and told to attend a disciplinary hearing for using an e-cigarette on the school premises in full view of pupils. However, she resigned before the hearing and issued a claim for constructive dismissal.

The Employment Tribunal dismissed her claim of constructive dismissal, finding that the employer had generally taken reasonable and proper action in relation to the investigatory and disciplinary procedures. Importantly, the Employment Judge went on to say (albeit obiter — that is, not part of the actual judgment) that if the employee had not resigned but had been dismissed, then this dismissal could well have been unfair:

“vaping” is not the same as smoking and does not fall within the statutory definition of smoking in the anti-smoking legislation and as the school’s no smoking policy only prohibited “smoking” on school premises but did not expressly prohibit “vaping”, such a dismissal would likely be unfair.

As a result, in the absence of any binding case law, the use of e-cigarettes at work will not be governed by legislation but by employment contracts and policies.

What are the issues facing an employer?

There are a number of issues facing the employer who wishes to deal with the problems of e-cigarettes in the workplace. These include the following:

• employers are under a statutory duty to protect the health and safety of the workforce
• whether or not e-cigarettes are permitted in the workplace is a matter for the employer to decide and to enforce through the organisation’s internal policies
• the employer has to recognise that there is liable to be some concern among the rest of the workforce (and not least if employees are pregnant or trying to give up conventional smoking) if vaping is allowed at work
• the use of e-cigarettes at work may not fit in with the intended professional image of the organisation and its likely promotion of employee wellbeing.

Steps to take for employers banning e-cigarettes

If the employer does decide to ban e-cigarettes in the workplace, there are a number of important steps to be taken. These include the following.

• Consult with any employee consultative body before introducing new rules.
• Amend the organisation’s smoking policy. The amendments should include:
• an express ban of the use of e-cigarettes in the workplace, in company vehicles and at any client locations where your employees are working
• explain the reasons for the ban on e-smoking and that the organisation wants to prevent any activity that creates the illusion of smoking
• explain clearly that non-compliance with this policy may lead to disciplinary action.
• State in the policy that any unauthorised or excessive e-smoking breaks may result in disciplinary action.
• Employers may also need to update their Health and Safety policy to cover the use of e-cigarettes.

Finally, the employer could also (and alternatively) take some practical steps to support employees who are using e-cigarettes to try to stop smoking — for example, the use of an outdoor space specifically for vaping, which is quite separate from any space used by smokers. Information could also be provided on what help and support is available for employees who wish to give up smoking (or indeed, vaping).

All contractual clauses relating to garden leave must be carefully drawn. If the employer does wish to rely on such a clause, it should set out the terms applicable during the period of garden leave and state that the employer is under no obligation to provide work for the employee for the entire duration of the employment.