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Does an e-cigarette fall within your no smoking policy?

30th January, 2014

Over recent years much attention has been drawn to the health risks posed by smoking cigarettes with an emphasis on the effects of second hand smoke. It is therefore commonplace for employers to have a smoking policy in place to either ban smoking in the workplace or designate a specific smoking area for employee use.

Modern times have evolved once more with the creation of e-cigarettes which have been designed as an alternative to smoking tobacco, producing the nicotine high without the tar and other health hazards of burning tobacco.

The question has now been raised to the Employment Tribunal for the first time, as to whether smoking an e-cigarette on work premises can amount to misconduct leading to a fair dismissal.

An employee of Viridor, a waste disposal company, was dismissed for using an e-cigarette whilst operating a truck on the employer’s site. Viridor didn’t have a specific smoking policy in place to prohibit this but took the decision that the employee’s action amounted to misconduct and therefore he was dismissed. The employee has now brought a claim for unfair dismissal.

This case is yet to be heard by the Tribunal but we will eagerly await the decision to see how the Tribunal will view use of e-cigarettes in the workplace and whether they will be treated in the same way as tobacco, particularly in terms of the legal ban of smoking inside public places. It will also be interesting the see whether the lack of a smoking policy altogether still prohibits smoking an e-cigarette as a tobacco based cigarette would be by the legal ban.

In the mean time and as good practice, employers should have an adequate smoking policy in place which, if they require, should also cover e-cigarettes in the same way as tobacco or in accordance with separate rules. We would advise that in order to protect your Company’s interests as much as possible, detailed policies should be implemented to help prevent claims being brought if your procedure is not currently in a firm position.

For a free review of your smoking policy or advice on implementing a new one, please contact Helen Watson on 01244 405565 or send an email to [email protected].

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