A recent case shows it’s time for clear policy on e-cigarettes at work. With the use of e-cigarettes becoming increasingly popular, employers need to think carefully about how they regard their usage in the workplace and clearly set out any regulations about them in company policy.
The recent case of Insley v Accent Catering serves as a reminder of just how important it is for employers to deal specifically with e-cigarettes and not rely on a smoking policy to cover their usage at work.
A school catering assistant brought a claim for constructive dismissal against her employer after resigning because the headteacher at the school had made a complaint to her employer, Accent Catering, when he saw her using an e-cigarette in front of pupils.
The employment tribunal dismissed Ms Insley’s claim, finding that the employer has acted properly in the circumstances.
Because Ms Insley resigned before her employer could arrange a disciplinary hearing to assess whether her actions were serious enough to justify dismissal, the tribunal was not able to comment on whether her actions amounted to gross misconduct, and therefore dismissal.
In fact, the tribunal indicated that as the school’s smoking policy did not prohibit the use of e-cigarettes, Ms Insley could have argued that it was unfair to dismiss her had she been dismissed because of this.
Smoking is defined as lit tobacco or any other substances that can be smoked when lit by legislation that bars smoking in the workplace. As e-cigarettes heat a solution which contains nicotine, emitting an aerosol that can then be inhaled or ‘vaped’, legislation or company policy dealing with smoking does not cover e-cigarettes.
Employers are urged to carefully consider how to manage the use of e-cigarettes at work and to draft new policy that clearly sets out the company’s regulations on e-cigarettes in the workplace.
