No smoke without fire – Can a smoking policy cover e-cigarettes?

According to reports there are now over two million people in the UK who use e cigarettes. So should employers expressly include the use of e-cigarettes, or “vaping”, in their no smoking policies? We think they should – a view which has recently been supported by the decision of the Employment Tribunal in the case of Insley v Accent Catering.

Ms Insley resigned from her job after her employer initiated disciplinary proceedings following her use of an e-cigarette in front of secondary school pupils. She then made a claim for constructive dismissal, which the Tribunal dismissed. The Tribunal did emphasise that because Ms Insley resigned instead of being dismissed, it was not in a position to consider whether or not her actions amounted to gross misconduct.

The Tribunal did indicate that the school’s no smoking policy would have been relevant to a claim for unfair dismissal. In doing so it also noted that the school’s smoking policy did not expressly deal with the issue of e-cigarettes. Therefore, if Ms Insley had been dismissed, her dismissal may have been found to be unfair.

It’s worth noting that while the Health Act 2006 bans smoking in the workplace, it remains silent on the issue of “vaping”, as e-cigarettes do not contain tobacco, nor are they lit. Ms Insley’s case, though not binding on a higher court, suggests that employers who wish to include e-cigarettes in their smoking policy need to do so expressly. Employers should therefore consider what their approach to e-cigarettes is without relying solely on their smoking policy as it currently stands. Acas has issued guidance on e-cigarettes in the workplace which some employers may find useful.

For more information on this, please contact a member of the Employment Team.


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