Smoking electronic cigarettes at work

There are 1.3m people in the UK who use electronic cigarettes. For a long time now employers have been grappling with the question of whether smoking electronic cigarettes at work should be treated the same or differently to smoking at work.

By Alison Driver, Metis HR.

Smoking in the workplace is banned, but that ban does not extend to smoking electronic cigarettes at work. A recent tribunal decision has helped clarify things a little.

A catering assistant was seen by a head teacher to be using her electronic cigarette in full view of school pupils. Progressing towards a disciplinary hearing to consider an appropriate penalty for smoking an electronic cigarette at work the employee resigned and claimed constructive dismissal against her employer, the catering company. The claim was not upheld, but that is not the aspect of this case that is of importance in the smoking electronic cigarettes at work quandary.

The tribunal made it clear that the school's Smoking Policy would have been relevant in consideration of the case. That policy banned smoking on school premises but it did not expressly prohibit smoking electronic cigarettes at work.

If the catering assistant had been dismissed she could have argued that she had been unfairly dismissed because the policy did not expressly prohibit smoking electronic cigarettes at work.

The jury is still out on the health effects of smoking electronic cigarettes at work. Public Health England in 2014 concluded that the hazards of using e-cigarettes and being exposed to second-hand vapour are likely to be extremely low. The World Health Organisation 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.

The situation is further complicated for employers trying to establish a policy on smoking electronic cigarettes at work by the fact that until 2016 there are no controls over the content of electronic cigarettes so the toxicity and odour of the vapour from electronic cigarettes may vary from product to product. Although employers may wish to support cigarette smokers who switch to electronic cigarettes, the British Medical Association advice is that regulating the smoking of electronic cigarettes in the workplace may be the best option to safeguard the health of all employees. Developing a policy on smoking electronic cigarettes at work is not something that employers can afford to be passive about.