A recent employment tribunal decision has highlighted how important it is for employers to include the use of e-cigarettes in their smoking policy. This is also a timely decision given that National No-Smoking Day is 11 March 2015.
The charity, Action on Smoking and Health, estimates that 1.3 million people in the UK are currently using e-cigarettes. Although their use could mean fewer smoking breaks and less health-related absence, many employers have banned e-cigarettes in the workplace. Patients and visitors will also soon be banned from using e-cigarettes in hospital grounds.
E-cigarettes are battery-powered devices designed to replicate smoking behaviour without the use of tobacco. The devices deliver a hit of addictive nicotine and emit a vapour to mimic the feeling and look of smoking. The exhaled vapour can be seen.
While smoking in enclosed or substantially enclosed workplaces in England has been banned since July 2007 and Scotland since March 2006, as it stands, e-cigarettes are unlikely to be covered by the UK smoke-free law as they do not contain tobacco. This means that employers are free to determine whether to prohibit e-cigarettes in their workplace or to permit them - either without restriction or in designated areas only. Regardless of the stance taken, employers are strongly advised to set out their position clearly and comprehensively in a written Smoking Policy. Employers that don't, put themselves at risk of unfair and constructive dismissal claims as the following case highlights.
Insley v Accent Catering
In this case, a school catering assistant brought a claim of constructive unfair dismissal. Mrs Insley claimed that she had suffered a fundamental breach of her contract of employment as her employer had breached the implied term of mutual trust and confidence.
Prior to her resignation, the school that she had been working for complained to her employer that she had been smoking an e-cigarette on the school's premises in full view of pupils. Mrs Insley was suspended pending her attendance at an investigation meeting and a subsequent disciplinary hearing. Her employer's Smoking Policy did not mention the use of e-cigarettes.
At the start of her disciplinary hearing, Mrs Insley presented her resignation letter and refused to take any further part in the process. In support of her claim, she alleged, amongst other things, that:
- her employer had failed to advise of her of the rules and procedures which she had contravened; and
- the incident had been elevated to one of potential gross misconduct
The employment tribunal did not uphold her claim. It found no evidence that her employer had breached the implied term of mutual trust and confidence, or that she was justified in resigning, in the circumstances. Given that this was not a case of ordinary unfair dismissal, and that the claimant was unable to convince the tribunal that she had suffered a fundamental breach of contract, the tribunal did not need to consider the overall fairness of the disciplinary process or whether her actions amounted to gross misconduct.
However the tribunal did raise a concern that it had not been clear that smoking e-cigarettes could be in breach of policy, it noted that 'if at the disciplinary hearing, Mrs Insley had not resigned and in due course was dismissed, it might have been unfair, but we will never know, because she resigned.'.
The following steps are recommended for employers dealing with the use of e-cigarettes in the workplace:
- Where there is not already have a Smoking Policy in place, employers should introduce a comprehensive written policy that sets out their approach to both regular and e-cigarettes
- Where employers do have in place a Smoking Policy, ensure that amendments are made to include details of the approach taken with regard to e-cigarettes, such as a provision expressly banning their use in the workplace, in company vehicles and at any client locations where their employees are working (if an outright ban is preferred).
Generally, Smoking Policies should clearly:
- explain what they are trying to achieve, i.e. in terms of promoting a healthy and safe workplace which seeks to protect all workers and visitors from exposure to smoke
- explain that failing to adhere to its provisions may result in disciplinary action
- explain the employer's position on taking smoking breaks and make it clear that excessive or unauthorised breaks may result in disciplinary action
- provide information about non-enclosed workplace areas for both smokers and e-cigarette users, ensuring that the different areas are not too close to one another
- provide links to, or information about, support that is available to those wishing to give up smoking.
This document is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.