Electronic cigarettes have become increasingly popular in the last 12 months but most employers are unsure of how to treat them. On the one hand employers want to be seen to assist employees who use them to stop smoking. However, some also feel that if they don’t treat e-cigatettes in the same way as normal cigarettes, it may undermine the existing smoking restrictions in force on the employer’s premises.

Electronic cigarettes also contain traces of nicotine in its heated solution and there is increased concern about the health benefits to its users as well as those that may be exposed to second-hand vapour. Although reports on their effects are not yet clear, there is some caution about exposing others to the vapour that is emitted from e-cigarettes, as it is claimed that this vapour contains nicotine and other toxic materials. Considering these health warnings, employers may wish to exercise caution and limit or prevent their use.

If schools wish to do this then they must ensure that their policy expressly prohibits the use of e-cigarettes. Electronic cigarettes do not fall within the definition of “smoking” under normal anti-smoking laws. This means that reliance on anti-smoking legislation alone will not be enough to take action against any employee who you would like to prohibit from using electronic cigarettes on site.

Insley v Accent Catering

There has also been recent case law on this subject. In Insley v Accent Catering, a catering assistant was caught smoking an e-cigarette on school premises. The Headteacher at the school that the catering assistant was engaged complained to her employer, Accent Catering, about her smoking an electronic cigarette in the presence of pupils. An investigation was undertaken and a disciplinary hearing was scheduled by Accent Catering to determine whether the employee had committed gross misconduct. The employee resigned before a hearing could take place.

Whilst the tribunal ruled out her case for constructive dismissal (because, as she resigned, the court couldn’t determine whether her actions amounted to gross misconduct, as she was not dismissed) they did indicate that the employer’s policy on smoking and whether this included electronic cigarettes would have been relevant to any unfair dismissal claim (and whether her actions amounted to gross misconduct).

What should you do next?

Firstly you should consider whether you wish to ban the use of electronic cigarettes on your school grounds. If so, then you should amend your no smoking policy to include electronic cigarettes within it. This may simply be by adding the term “electronic cigarette” to the list of prohibited substances in your policy.

Judicium Education can of course review and update your policy for you, if required, so please get in touch.