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Smoking in the workplace: gone up in smoke?

The case of Insley v Accent Catering is the first tribunal case to consider the use of e-cigarettes. It highlights the importance of having up-to-date smoking and disciplinary policies that specifically refer to e-cigarettes. 

Background

A colleague reported Mrs Insley for using an e-cigarette in full view of pupils at the secondary school where she worked as a catering assistant. She was suspended and disciplinary proceedings commenced to determine whether this was an act of gross misconduct. However Mrs Insley resigned just before the hearing and brought a claim for constructive unfair dismissal. 

At tribunal

The tribunal dismissed her claim for constructive unfair dismissal determining that the employer had acted reasonably and properly in the circumstances. 

The tribunal stated that it could not decide whether Mrs Insley's actions amounted to gross misconduct which would justify dismissal, as she had resigned rather than being dismissed. Significantly, the tribunal commented that the school's smoking policy would have been important in an unfair dismissal claim. 

The school's policy prohibited smoking on school premises but did not refer to e-cigarettes or vaping. If Mrs Insley had been dismissed, she could have argued that using an e-cigarette was not prohibited. 

Comment

Section 1(2) Health Act 2006 defines smoking as lit tobacco or any other substance that can be smoked when lit. However e-cigarettes emit an aerosol that is inhaled. It is therefore unlikely that e-cigarettes are covered by the law banning smoking in public places. 

Employers therefore need to consider whether vaping or using e-cigarettes is to be treated in the same way as conventional smoking. If you decide to ban e-cigarettes in the workplace, it is important to and update your policies to reflect this. This will be particularly important for sectors (eg education or public health) where smoking, or simulated smoking, is banned completely for health-related reasons.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at February 2015. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

TLT LLP is a limited liability partnership registered in England & Wales number OC 308658 whose registered office is at One Redcliff Street, Bristol BS1 6TP England. A list of members (all of whom are solicitors or lawyers) can be inspected by visiting the People section of this website. TLT LLP is authorised and regulated by the Solicitors Regulation Authority under number 406297.

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