With the pace of technology nowadays it sometimes takes a little bit of time for employment law to catch up with everyday situations.
A recent case in point arose when a Tribunal had to consider a case involving the use of e-cigarettes – often referred to as “vaping”. An Employee was smoking an e-cigarette in circumstances that would have been in contravention of the Employers non-smoking policy if it had been an ordinary cigarette. The Employee was a school catering assistant and a complaint was raised that the e-cigarette was being used at the beginning of the school day in full view of pupils. The Employer invited the Catering Assistant to a disciplinary hearing, intending to discipline her under the terms of its non-smoking policy. The Catering Assistant resigned before the hearing could be held and she then brought a claim for constructive unfair dismissal.
The Tribunal was not prepared to uphold the claim of constructive unfair dismissal, holding that the Employer had acted properly in convening a hearing to consider the issues, however it was not possible to reach a conclusion on whether or not the Employee’s actions would have amounted to gross misconduct, justifying dismissal because she left her employment before the Employer had the chance to consider this issue under the terms of its policy. The Tribunal indicated however that the school’s smoking policy would have been relevant to an unfair dismissal claim if the Employee had been dismissed following a disciplinary hearing. The case has highlighted the fact that current legislation does not cover e-cigarettes. If Employers want to regulate their Employee’s use e-cigarettes then it would be advisable to update the relevant non-smoking policy to expressly cover the use of e-cigarettes.
A World Health Organisation paper has concluded that e-cigarettes are less harmful than conventional cigarettes, but that the vapour emitted by e-cigarettes still contains nicotine and other toxic particles.
Although Employers will no doubt wish to support cigarette smokers who are trying to quit, regulating the use of e-cigarettes in the workplace would be a reasonable approach to safeguarding the health of all employees.
For help on updating your smoking policy please contact firstname.lastname@example.org