Last reviewed 18 May 2015
A new workplace problem: an employee has complained about a colleague who used an e-cigarette during a meeting with her. She asked him to stop but he refused. He says, the company cannot ban him from using e-cigarettes in the workplace, as he is trying to stop smoking, and that there is no legislation which bans e-cigarette use at work or in public places. There is no company policy on e-cigarettes. Stuart Chamberlain, Croner author and employment law specialist, considers these issues and suggests steps to take if the employer does decide to ban e-cigarettes in the workplace.
What exactly are e-cigarettes?
E-cigarettes (or electronic cigarettes) are battery-powered devices to replicate the experience of smoking without the use of tobacco. They work by heating a cartridge of liquid nicotine, which emits an aerosol that users inhale or “vape”. It is estimated that up to two million people are now using e-cigarettes or “vaping”.
Although the use of e-cigarettes has been banned by a number of organisations (notably the BBC, the Royal Opera House and Starbucks) and despite warnings about their use and the lack of regulatory control from the World Health Organisation (WHO) and the British Medical Association (BMA), there is as yet no conclusive medical evidence or opinion about their safety. A report by Public Health England in 2014 concluded that the risk from using e-cigarettes and any hazard posed by their vapour is likely to be very small. Indeed, the latest research from King’s College, London actually says that daily vaping is the best way to quit smoking.
What is the legal situation?
Smoking in enclosed (or substantially enclosed) public places was banned in July 2007. The ban was extended to the workplace to ensure that they were smoke-free. Some employers do permit designated smoking areas.
This legislation, however, does not apply to e-cigarettes. 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.
Is there any relevant 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).
Acas has published useful guidance for employers on the use of e-cigarettes in the workplace.