The burning question: are e-cigarettes permitted in the workplace?

Over the past number of years, electronic cigarettes (often referred to as 'e-cigarettes') have become increasingly popular across the world, and in particular, throughout the UK, following the 'smoking ban' implemented in 2007.

Whilst there may be some benefits to e-cigarettes, as opposed to traditional cigarettes, the popularity of e-cigarettes has caused difficulties for employers in the context of the prohibition of smoking in the workplace.

Smoking in the workplace – a recap

Under the Smoking (Northern Ireland) Order 2006, smoking is prohibited in places of work: it is a criminal offence not only for an employee to smoke in the workplace, but also for an employer to permit an employee to smoke in the workplace. An additional risk for employers who permit employees to smoke in the workplace is a breach or their statutory duties under the Health and Safety at Work (Northern Ireland) Order 1978.

Unhelpfully, the legislation does not directly address the use of e-cigarettes in the workplace, it simply refers to 'smoking tobacco or anything which contains tobacco, or smoking any other substance' and 'being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked'.

Given that tobacco is not used in e-cigarettes, it is difficult to see how an argument that e-cigarettes fall within the legislative prohibition would succeed. Unsurprisingly, this uncertainty has caused difficulties for employers, with the issue reaching the Employment Tribunal in England.

Insley -v- Accent Catering¹

A claim for constructive dismissal was issued by a former catering assistant of the Respondent. The Claimant resigned in the face of the Respondent initiating a disciplinary procedure following the Claimant 'smoking an e-cigarette on school premises in full view of the students' and as such, the Respondent considered this as 'bringing the company into disrepute'.

Whilst the Employment Tribunal rejected the Claimant's claim for constructive dismissal, as it was not satisfied that the employment contract had been breached, the judge did note that, had the Claimant not resigned but rather was dismissed by the employer as a result of the disciplinary procedure, the dismissal may have been 'unfair' as the school's smoking policy did not refer to 'e-cigarettes'.²

What can be taken from this judgment, is that, whether or not an employer wishes to permit or prohibit the use of e-cigarettes in the workplace, their policies and procedures should directly address the issue of e-cigarettes, and those policies should be followed: it is when the policy is silent on e-cigarettes, that many issues for employers arise.

Considerations for employers

The UK Government has indicated that it intends to regulate the market of e-cigarettes by the imposition of specific standards and controls on advertising, however, uncertainty still remains as to whether e-cigarettes should fall within the smoking prohibition. Given the potential criminal sanctions and health and safety considerations facing employers, together with the Employment Tribunal's comments in Insley referenced above, it is advisable that employers address the issue, by reviewing and, where necessary, updating their policies and procedures, so as to enlighten employees as to the use of e-cigarettes in the workplace.

If you would like us to assist in a review of employment policies in this regard, please do not hesitate to contact a member of the Employment & Incentives Team (NI).

Date published: 15 October 2015

¹ET/3200687/2014
²Please note that this point was considered in obiter, and was not a point of law determined by the Employment Tribunal.