• Lee Calver
  • 23 February 2015

Employers urged to include e-cigarettes in smoking policy

Most employers will still be uncertain about how best to manage the use of e-cigarettes and questions arise as to whether e-cigarettes should be treated as if they are cigarettes or if they should have different rules for their use.

The Employment Tribunal in the recent case, Insley v. Accent Catering, considered a claim by a school catering assistant that she had been constructively dismissed by her employer.

Ms Insley was employed as a catering assistant and was engaged in providing catering services at a secondary school. The Headteacher of the school complained that he had witnessed Ms Insley smoking an e-cigarette on school premises at the beginning of the school day in full view of the pupils.

The school’s policy prohibited smoking on school premises and therefore the Headteacher made it clear that the school considered the act to be a gross misconduct offence. However, the policy did not explicitly prohibit the use of e-cigarettes.

Ms Insley was then invited to a disciplinary hearing to decide if her actions were serious enough to justify dismissal, but resigned before the hearing could take place.

The Tribunal dismissed Ms Insley’s claims of constructive dismissal, stating that the employer had acted properly.

This claim was not for actual dismissal by the employer, but a claim of constructive dismissal and therefore the Employment Tribunal noted that it focused on whether the employer had acted so poorly that it breached the term of trust and confidence implied into all employment contracts. The Tribunal held that there had been no such breach and that the employer had ‘reasonable and proper cause’ for all its actions.

It went onto say that because Insley had resigned, and not been dismissed, it could not decide the question of whether or not her actions amounted to gross misconduct. However, the Tribunal did identify as a ‘point of concern’ that, while the employer considered the use of an e-cigarette to be the same as smoking an ordinary cigarette, it was not clear that Ms Insley had breached any policy by using the smoking device.

Ms Insley had not been informed of the rule she had broken because there was no rule in force prohibiting the use of e-cigarettes. So, if Ms Insley had been dismissed, she could have argued that it was unfair to dismiss her as using an e-cigarette was not expressly prohibited on school premises.

Offering expert advice to employers going forward, International Workplace HR Consultant, Heidi Thompson, said:

“Like any rules in the workforce, they can only be effectively enforced when clearly stated through policy and procedure and explained to employees. The use of e-cigarettes is a growing concern with health risks not fully known. In addition, it can be difficult to immediately see the difference between some products and a real cigarette and therefore allowing the use of e-cigarettes could create problems when trying to enforce a smoking ban.”

Heidi continued:

“It is advisable for employers to have a clear policy on smoking which includes e-cigarettes as they cannot rely on employees interpreting the policy and assuming the ban includes both products.

“Without this clarity, employers are at risk if they try to enforce and / or take disciplinary action against an employee for using an e-cigarette in the workplace. Dismissal may still be fair, but would be far less risky with clear policies and rules that are enforced.”

Heidi added:

“If an employer decides to ban e-cigarettes then they should review their current policy and update accordingly, they should then update employees as well as visitors to the premises – in the same way a no-smoking ban is communicated.”

Some useful action points, as drawn up by Heidi, are detailed below:

  • Agree your policy is on smoking (including electronic cigarettes)
  • Consider where smokers can smoke i.e. are there designated areas outside or is it a total ban on the premises
  • Consider where employees can use e-cigarettes. Like smokers, you could consider a designated area outside – but be mindful that this should not be with smokers as often those using e-cigarettes are doing so to give up smoking
  • Consider how ‘break’ times will work for smokers / e-cigarettes – is this just during designated breaks / natural time away from the desk – this will depend very much on your organisational needs
  • Communicate the policy to your employees – this should be through the policy and updates from managers
  • Make clear that a breach of the policy may lead to disciplinary action – this must be documented within the policy
  • Apply your policy consistently across the board for all employees
  • Ensure that any ‘no-smoking’ signage includes references to electronic cigarettes where appropriate
  • Look at ways of supporting your employees if they want to give up smoking