E-cigarettes in the workplace by Anna Illingworth

The law which dictates many of the rules and regulations that affect our working lives is constantly evolving. Sometimes change comes about to give effect to government and European policy and sometimes it is driven by changes in people’s behaviour.

In a recent example of changes in behaviour the Employment Tribunal considered a claim brought by a school catering assistant alleging that she had been constructively dismissed by her employer.

In the case of Insley v Accent Catering, The secondary school at which Miss Insley worked complained to her employer, Accent Catering that Miss Insley had been using e-cigarettes in full view of pupils. The school wrote to Miss Insley to say that it wanted to see her at a disciplinary hearing and Miss Insley resigned and started Employment Tribunal proceedings for constructive dismissal. She claimed that the employer’s actions amounted to a fundamental breach of her contract. The Employment Tribunal disagreed and found that the school had acted entirely properly. This is the first case that has considered the use of e-cigarettes. 

In 2007 it became law that almost all workplaces in England had to be smoke free. However, the existing health and safety legislation does not currently apply to the use of e-cigarette vapers and cannot be used to justify taking disciplinary action against e-cigarette vapers.  However, the increasing use of e-cigarettes has led to increased concern about their use. In 2014 Public Health England found the risks from passive inhalation of the vapour were low, while the World Health organisation concluded that the vapour contained nicotine and other toxic particles.  The debate will continue.

The case did not consider what would have happened if Miss Insley had been dismissed or what would have happened if a parent had complained to the school. There will almost certainly be future cases that do consider those issues unless new legislation clarifies the position.

What do your smoking policies and disciplinary procedures say about the use of e-cigarettes?

For practical and cost-effective advice for employers and employees contact Anna Illingworth at Rowberry Morris Solicitors. 0118 9585611 anna.illingworth@rowberrymorris.co.uk