First e-cigarette employment tribunal decision provides a warning for employers

February 19, 2015

The employment tribunal in Insley v Accent Catering (ET/3200687/2014) has put the spotlight on the issue of e-cigarettes in the workplace and brings question to what employers must do to ensure their no smoking policies include smoking by way of ‘vape’ or e-cigarettes.

Mrs Insley, a school catering assistant was suspended by her employer for using an e-cigarette on school premises. She resigned and claimed that she had been constructively dismissed.

Her claim was unsuccessful as the employment tribunal felt the act of suspension was reasonable. However, the employment tribunal indicated that if she had not resigned but been dismissed, when considering the employers smoking policy, the decision to dismiss might have been judged to be unfair.

When it comes to smoking in the workplace, smoking is defined as lit tobacco or any other substance that can be smoked when lit. E-cigarettes are not lit but work by way of a heated solution containing nicotine which emits an aerosol. The user inhales the aerosol and this is known as ‘vaping’.

Whilst the School’s smoking policy did prohibit smoking on school premises, it did not prohibit the use of e-cigarettes. If Ms Insley had been dismissed, she could have raised the issue of the definition of smoking and argued her dismissal to be unfair as using an e-cigarette was not expressly prohibited on the premises.

What does this mean for employers?

Employers cannot now simply rely on the legislation prohibiting smoking in the workplace to control or prohibit the use of e-cigarettes.

To ensure disciplinary action can be taken if an employer finds itself in a situation where an employee is using an e-cigarette on the premises, employers should ensure the company smoking policy is updated to include the use of e-cigarettes within the definition of what constitutes smoking.

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