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E-cigarettes at work - is vaping included in your smoking policy?

24 February 2015 #Employment


According to Action for Smoking and Health, there were 2.1 million adults using e-cigarettes in the UK last year. E-cigarettes pose a number of problems for employers, in particular, whether they should be used in the workplace.

In a recent case, an Employment Tribunal had to grapple with the issue of whether an employee had been constructively dismissed after her employer initiated disciplinary proceedings for her use of e-cigarettes at work. Ms Insley was a catering assistant employed by Accent Catering. She worked in a secondary school in which the headteacher complained to her employer that Ms Insley had been seen vaping in front of the pupils. Ms Insley was invited to a disciplinary hearing for vaping at work and in response, she resigned.

The Employment Tribunal dismissed Ms Insley’s argument that her employer had breached her employment contract by initiating disciplinary proceedings. It found that her employer’s actions were entirely proper. In its judgment however, the Employment Tribunal stressed that it was not asked to consider whether Ms Insley’s actions constituted gross misconduct as Ms Insley had resigned before any disciplinary hearing or potential dismissal had taken place. Had Ms Insley been dismissed however, the school’s smoking policy would have played an important part in deciding whether the dismissal was fair. Interestingly, the school’s smoking policy did not cover vaping at work.

With a growing increase in use of e-cigarettes, employers need to consider amending their smoking policy to tackle the issue of vaping at work. If an employer considers that use of e-cigarettes at work constitutes gross misconduct, this should be made clear within the smoking policy.

 

Clarkslegal, specialist Employment lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Employment matter please contact Clarkslegal's employment team by email at employmentunit@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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Kate Walsh

Kate Walsh
Senior Solicitor

E: kwalsh@clarkslegal.com
T: 0118 960 4692
M: 07776 305 578

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