Practices 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.
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 not unlike 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.
Employers can choose whether to let their employees use these devices at work or not; the key is making this clear to them and incorporating it into a smoking policy. If there’s no policy on smoking, a good place to insert one is in the drugs and alcohol policy.
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).
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 patients or visitors to the practice may mistakenly think employees are smoking tobacco.
Employers should ensure that the same smoking breaks apply to e-smokers. For example, employees can take time off their lunch hour if breaks aren’t normally given. Employees should be informed of the location of designated smoking areas but are under no obligation to provide a smoking shelter.
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 claimed her actions had not been enough to warrant a dismissal but as she resigned and was never actually fired, the claim was dismissed.
However, the tribunal 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 any of the school’s policies. The case highlights the need for e-cigarette smoking to be explicitly referred to as part of a smoking policy.
It’s also important to outline to employees the repercussions of non-compliance, which will most likely be dealt with under the practice’s disciplinary procedures.
Practices should ensure their smoking policy is kept separate from the employment contract and details are provided in an employee handbook. This will allow the policy to be amended without having to get employees’ agreement to amend their contract.
This page was correct at the time of publication. Any guidance is intended as general guidance for members only. If you are a member and need specific advice relating to your own circumstances, please contact one of our advisers.