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Kicking the habit: Latest case on electronic cigarettes

Employers have no doubt found a rise in the number of their employees using electronic cigarettes in the first few months of 2015 with the inevitable New Year resolution to finally ‘kick the habit’.

smoking policyCertainly there has been a substantial rise in the use of electronic cigarettes since smoking in public areas, including the workplace, was banned in 2006. The organisation Action on Smoking and Health (ASH), estimates that around 2.1 million adults currently use electronic cigarettes. This leads to a dilemma for employers about whether to permit employees to use electronic cigarettes at work.

The decision involves balancing a number of factors (see below), but what is key is for employers to ensure that a no smoking policy reflects any decision not to allow the use of electronic cigarettes at work.

This issue has hit the headlines recently in the case of Insley v Accent Catering. An employee brought a constructive dismissal claim against her employer who had called her to a disciplinary hearing in relation to ‘vaping’ (smoking an electronic cigarette at work) and bringing the employer into disrepute.

The employee resigned before the disciplinary hearing took place, however in its judgment the tribunal voiced concerns over the employer’s no smoking policy. Had the employer dismissed Insley for vaping the employer’s no smoking policy did not specifically state that this was a breach of the rules and potentially gross misconduct. This could have caused difficulties in the fairness of any subsequent dismissal. This is a warning to employers that if they wish to ban or restrict the use of electronic cigarettes at work, this needs to be addressed specifically in any no smoking policy.

Factors employers should consider in a no smoking policy:

Health and safety concerns

Although it is not unlawful to use electronic cigarettes in public spaces, the jury is out on whether there are associated health risks, and a number of employers may consider that it is harmful to permit (or be seen as encouraging) smoking in any form. The British Medical Association (BMA) has called for a ban on electronic cigarettes in public places and states that their use ‘normalises’ smoking. Electronic cigarettes are to be licensed as a medicine in the UK from 2016 which reflects the current concerns in relation to their safety and lack of regulation.

Allowing electronic cigarettes in the workplace could also give rise to employees complaining about second hand vapor, smells, and potential health risks. Similarly they could argue that seeing colleagues smoking makes it more difficult for them to give up smoking; from a duty of care perspective, something that most employers would wish to encourage.

Perception and image

Another concern is the perception that clients or customers may have if they see employees ‘smoking’. Would you really want customers seeing members of your team smoking at work? There are clearly a number of sectors particularly service industries including retail and leisure where this would be frowned upon.

Additionally, it can often be difficult, at least from a distance, to know whether someone is smoking a real or electronic cigarette. This has been highlighted in the cases of individuals being evicted from football grounds after using electronic cigarettes. As employers will have banned smoking at work and in work vehicles, inevitably employees may argue that they weren’t smoking an actual cigarette if ever challenged or facing disciplinary action.

‘Smoke’ breaks

You may consider treating users of electronic cigarettes in the same way as other smokers and allow employees to have a ‘smoke’ break in a designated smoking area (although employers are not obliged to provide a smoke break or smoking area, many employers do). You may want to consider separate areas; employees trying to give up smoking may argue that mixing with tobacco smokers is impacting on their ability to ‘kick the habit’.

Action points

• Decide what your policy is on smoking (including electronic cigarettes)

• Consider issues for both types of smoker such as allowing smoking breaks and designated smoking areas

• Communicate the policy to your employees

• Make clear that a breach of the policy may lead to disciplinary action

• Apply your policy consistently

• Ensure that any ‘no-smoking’ signage includes references to electronic cigarettes where appropriate

• Look at ways of supporting your employees if they want to give up smoking

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Legal news, views, trends and tools for HR Professionals. Stay ahead. Go further