E-cigarettes have become increasingly popular with over 2 million UK adults currently using them. With this in mind, ACAS has released guidelines on e-cigarette policies in the workplace.
E-cigarettes fall outside the scope of smoke free legislation as the act of smoking requires a substance to be burnt, so employers can choose whether to allow employees to smoke them at work or not.
The first Employment Tribunal case of Insley v Accent Catering highlights the need for employers to rapidly review their smoking at work policies. Ms Insley resigned in response to being invited to a disciplinary hearing, which had been convened to consider allegations against her relating to her use of an e-cigarette in front of pupils.
The claim was dismissed by the employment tribunal but it indicated that if the school had attempted to dismiss her on the grounds of gross misconduct, they would have risked an unfair dismissal claim as their smoking policy did not stipulate that that use of e-cigarettes was prohibited.
What is clear is that employers must consider their approach to e-cigarettes and amend any relevant policies accordingly. If an employer wants to retain the right to dismiss a worker for using an e-cigarette in the workplace or in front of customers (or pupils as in this case) then the relevant policy should make that clear. ACAS note that there may be a concern that preventing the use of E-cigarettes at work may hinder those who use them to stop smoking, particularly if they are required to smoke them in designated smoking areas together with cigarette smokers. Employers may want to consider organising a separate e-cigarette smoking area external to work premises.
If you would like advice on amending your smoking policy to include regulation in relation to e-cigarettes, call a member of our Employment Team on 01279 755777.