Smoking Policies need to cover E-Cigarettes
The Health Act 2006 introduced a statutory prohibition on smoking in public places, including all offices and work spaces. E-cigarettes do not technically fall within the scope of this law and there is no legal requirement to ban them at work.
In the case of Insley V Accent Catering there was no clear distinction and the Employer took disciplinary action against an employee who was "vaping" Whilst a court ruling on the subject was not reached because the employee resigned before the disciplinary process was concluded the court did raise a "point of concern"
Notably:
that, while the employer clearly considered e-smoking to be the equivalent of smoking an ordinary cigarette, it was not clear that the employee had breached any policy by using such a device.
The employee had not been informed of the specific rule that had been broken because there was no rule in force prohibiting the use of e-cigarettes. The only relevant policy in place was a conventional no-smoking policy.
This case provides a useful reminder that if an employer wishes to sack an employee for , it may not be able to fall back on its conventional smoking policy to justify any action taken.
If an employer decides that a ban on e-cigarettes is necessary and appropriate, it would be sensible to amend any existing no-smoking policy to explicitly prohibit e-cigarettes. And making it clear that any revised policy extends to third parties, such as visitors, as well as employees.
Dismissal in the absence of a designated policy or provision may potentially be fair, but is more likely to be fair where an employer can point to breach of a specific rule.
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