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Legal Updates

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.
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