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E-cigarettes – a burningly urgent matter for employers?

As explained in our previous blog, e-cigarettes fall outside the reach of the Scottish smoking ban. So, unless there are specific local rules or workplace policies in place, people can ‘vape’ at work.

In a recent employment tribunal case, Mrs Insley, a school catering assistant, was suspended for smoking an e-cigarette on school grounds. At the start of her disciplinary hearing she resigned stating, amongst other things, that she had been “falsely accused of breaking…rules and procedures”.

Mrs Insley claimed constructive unfair dismissal. Although her claim was ultimately unsuccessful, the employment judge commented that if her employer had dismissed her for smoking an e-cigarette this may well have been unfair because it was “not clear that smoking e-cigarettes is a breach of anybody’s policy” and further enquiry may have revealed that “others used e-cigarettes openly on the school’s premises without sanction”.

If you haven’t already done so, you should consider your stance on the use of e-cigarettes in the workplace. In some cases, for example, offshore oil and gas workers, a zero tolerance position may be necessary. Health - stethoscopeAlthough you may be keen to allow vaping as a means of supporting employees in their attempts to give up smoking, bear in mind your duties as regards the health and safety of the rest of your workforce.  Many commentators argue that there is no conclusive evidence that second-hand e-cigarette vapour is safe (particularly for high-risk groups such as pregnant women and those with breathing difficulties). A British Medical Association briefing in March 2012 “E-cigarettes in public places and workplaces” noted that it is possible that some e-cigarette vapours could be a health risk to the person using e-cigarettes and others exposed to the vapours.  If young children are present in your workplace you may also want to factor in the contention that e-cigarettes provide negative role-modelling for young people.  If you decide to prohibit vaping in the workplace, but you designate areas where employees can use e-cigarettes, the Health and Safety Executive points out that you need to ensure that e-cigarette users are not at risk of harm from second-hand tobacco smoke.

Crucially, once you have made a decision on your stance, you should document this in your policy and communicate it to all staff. As highlighted in Mrs Insley’s case, if you don’t have a clear policy it will be very difficult for you to take disciplinary action against those who vape, should you wish to do so.

Eilidh Rarity Brodies LLP

 

 

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