There is a choice for employers to make as to whether they allow e-cigarettes in the workplace.
Many employers have already updated their policies to ban e-cigarettes in the workplace. These employers found that although there is a widespread belief that e-cigarettes are not harmful, vaping in the workplace does not create the right impression. It could be off-putting for visitors and colleagues, who might actually think someone is smoking.
In a 2014 case, a school catering assistant was suspended by an employer for using an e-cigarette on school premises. The employer had received a complaint from the school, which stated that the employee was vaping in front of pupils as they arrived.
Following a suspension, the employee was invited for a disciplinary hearing. Instead, the employee chose to resign and later brought about a claim for constructive dismissal. The employee claimed that the employer had breached the implied term of mutual trust and confidence. The tribunal did not uphold the claim. But it said that if the employee had not resigned and been dismissed, it may have found in their favour. In this instance, the school’s no smoking policy prohibited smoking on school premises but it did not expressly prohibit the use of e-cigarettes.
If employers are concerned about e-cigarettes, they should update their smoking policies to cover vaping. Employers should also make sure that their policies clearly spell out the consequences of a breach of the rules in relation to e-cigarettes so employees are clear what is expected of them and what will not be tolerated. Employers will of course need to make sure their response to any breach is fair and reasonable.
Recently Public Health England suggested that employees could be offered extra breaks and their own vaping room to help them continue to give up tobacco. This is an attempt to make vaping the more convenient option for those who are trying to give up tobacco. The idea is that vapers do not have to mingle with smokers as this may undermine their ability to quit tobacco for good. There is clearly no obligation on employers to do this but watch this space to see what reaction this gets.
For further information surrounding this issue, please contact Steve Sweetlove.