Shakira Joyner, HR Consultant from hchr Limited shares her blog with us:
As more and more people are switching from smoking to the use of e-cigarettes in public places, recent case law highlights the need for employers to consider e-cigarettes in their smoking policy.
Case only failed due to the Claimants Resignation
The case law centred around a claim in Insley v Accent Catering where a school catering assistant argued that she had been constructively dismissed by her employer. Ms. Insley had been observed using an e-cigarette at the beginning of the school day in full view of pupils. The headmaster had made a complaint to her employer and Ms. Insley had resigned just before a disciplinary hearing was arranged by her employer to decide if her actions were serious enough to justify dismissal.
The tribunal dismissed her claim of constructive dismissal, holding that the employer had acted properly. However, this was only due to the fact that Ms Insley had resigned, and not been dismissed and the tribunal indicated that the school’s smoking policy would have been relevant to an unfair dismissal claim.
The school’s smoking policy prohibited smoking on school premises, but did not prohibit the use of e-cigarettes. If Ms Insley had been dismissed, she could have argued that it was unfair to dismiss her as using an e-cigarette was not expressly prohibited on school premises.
E-Cig Risks considered low
E-cigarettes are coming under increased scrutiny because of emerging concerns as to the health benefits for users and those exposed to second-hand vapour. However, a 2014 report prepared for Public Health England concluded that the hazards of using e-cigarettes and being exposed to second-hand vapour are likely to be extremely low.
A World Health Organisation paper similarly concluded that e-cigarettes were less harmful than conventional cigarettes, but cautioned that the vapour emitted by e-cigarettes is not merely “water vapour” as frequently claimed, but a vapour containing nicotine and other toxic particles. However, not all brands are equal and the lack of regulations at present (planned laws do not come into force until 2016) means that it simply cannot be argued that the products are ‘all safe.’
Established suppliers don’t fear legislation
“Demand for e-cigarettes is growing and our goal is keeping our customers safe by only wholesaling reputable brands such as KIK and Intense who adhere to strict trading standards guidelines. There are a lot of cowboy imports out there and a wide variance in product quality. Established suppliers like ourselves welcome responsible legislation.”
BMA advises employers to consider ALL workers, not just smokers
Current workplace advice from the British Medical Association states that whilst employers may wish to support smokers switching from traditional cigarettes to e-cigarettes, employers should consider restricting their usage at work to protect the workforce as a whole.
However the issue raised by the tribunal was more straightforward. It did not consider whether or not vaping at work is ‘good’ or ‘bad’ but that vaping needed to be specifically defined as ‘permitted’ or ‘not permitted’ by the school’s smoking policy in order for the employee to be disciplined for it.
The cases therefore establishes quite clearly that employers cannot assume that vaping is covered by their existing smoking policy, and must address it specifically.
Free Advice for Employers
For those employers keen to learn more, Swansea-based employment consultants hchr discuss the issue of e-cigarettes in the workplace on their blog and have also written a free eBook for employers to download. Shakira Joyner of hchr stressed that following this case, certain key things need to be made clear to staff:
“Are e-cigarettes allowed in your workplace? Are they prohibited under the smoking policy? Are you allowed to use them at your desk or must you go outside, the same as any other smoker? These are questions that you should know the answer to if you are a manager or supervisor, and these are points that should be made clear to all employees.”