Employment law: Up in smoke

Janice Sibbald advises on developing a practice policy on e-cigarettes

E-CIGARETTES and personal vaporisers are battery-operated devices now marketed not just as a “healthier option” to traditional cigarette smoking but also as lifestyle accessories, like the latest smartphone or tablet computer. They produce a vapour including flavoured aromas either with or without nicotine, but also with fewer toxicants than cigarette smoke. The number of people who use electronic cigarettes in the UK has tripled over the past two years to 2.1 million, according to estimates by the health charity ASH.

One might assume that e-cigarettes would be covered under existing smoking policies and legislation; however, this is not the case, as tobacco is not actually being lit and burnt. So what does this mean for employees and employers where e-cigarettes are being used?

In a nutshell, employers can choose whether to let their employees use these devices at work or not; the key thing is making this clear to them and incorporating it into a smoking policy. If you don’t have a policy on smoking, a good place to insert one is in your drugs and alcohol policy.

Kicking the habit

It may be argued that a responsible employer should encourage employees to give up smoking and therefore promote the use of these aids where possible (although it’s fair to point out that not all users see e-cigarettes as a means to quitting). Giving up smoking can be hard, as nicotine is highly addictive, and employers may wish to promote access to NHS smoke-free services or even pay for private hypnotherapy or counselling. There is a huge host of services provided by the NHS to support employees, including the use of NRT (nicotine replacement therapy), group counselling sessions, as well as access to specialised telephone advice.

If an employer decides to allow employees to use e-cigarettes, they must also consider the effects on other staff members. Currently the long-term effects of e-cigarettes are unknown, as are the potential impacts of the vapours emitted from these products. E-cigarettes could add to an unpleasant working environment and it might also be considered unsightly in customer-facing roles. Patients or visitors to the practice may mistakenly think employees are smoking tobacco.

Allowing the use of e-cigarette smoking in the workplace might also land you in an argument with other employees as to why real cigarettes are not permitted too!

Case law

Employers should ensure that the same smoking breaks apply to e-smokers and you are within your rights to ask employees to take time off their lunch hour, for example, if breaks aren’t normally given. Employees should be informed of the location of designated smoking areas but employers are under no obligation to provide a smoking shelter. However, if a shelter is provided, there are other legal requirements to be considered.

A recent employment tribunal decision highlighted the need to ensure that e-cigarettes are included as part of a practice smoking policy. In the case of Insley v Accent Catering, an employee resigned and pursued her employer for unfair constructive dismissal following attempts to discipline her for smoking an e-cigarette at work.

Ms Insley was a catering assistant at a school and was allegedly seen smoking in front of pupils. She was invited to a disciplinary hearing which she never actually attended and then resigned claiming that her actions had not been enough to warrant a dismissal. But as she was never actually fired, the claim was dismissed.

However, the tribunal then turned their attention to the school’s nosmoking policy. It ruled that if she had been dismissed for smoking an e-cigarette the dismissal would have been unfair as e-cigarettes were not included in the schools no-smoking policy. The case highlights the need for e-cigarette smoking to be explicitly referred to in no-smoking policies.

It’s also important to outline to employees the repercussions of noncompliance, which will most likely be dealt with under the practice’s disciplinary procedures. Practices should remind employees that it is in fact a criminal offence (which will attract a fine) to smoke in a designated smoke-free public area.

As with any policy, you should ensure that you keep your smoking policy separate from your employment contract and provide details in an employee handbook. This will allow you to amend or change the policy without having to get your employees’ agreement to amend their contract – to do so without following the agreement to the letter could put you in breach of contract.

We will be watching with interest how case law evolves in this area.

Janice Sibbald is an employment law adviser at MDDUS