Following the recent popularity of e-cigarettes some companies are still unclear on the necessity of ensuring a section on using e-cigarettes at work is included as a separate addition to any existing smoking policy they already have.
Employers need to be clear about what their rules on the use of E-cigarettes at work are and they should be included in a policy on smoking or a drugs and alcohol policy.
Such policy should also clearly state that any unauthorised or excessive taking of smoking or E-smoking breaks will result in disciplinary action, along with any smoking of cigarettes or E-cigarettes in a prohibited area at work.
If a policy does not exist, then one should be incorporated into the terms and conditions of the staff handbook. When introducing new rules, employers should first consult with any recognised union or elected representatives, and they should speak with all employees to make sure they understand what the new rules mean and that they apply to them. A recent employment tribunal for Insley v Accent Catering heard that a catering assistant who worked at a school was claiming to have been constructively dismissed by her employer.
The court heard that the head teacher of the school where the respondent had been placed to work by her company complained to her employer, Accent Catering, that he had seen her using an e-cigarette in full view of pupils.
The respondent resigned just before a disciplinary hearing was arranged however whilst the tribunal stressed that, because the respondent had resigned, and not been dismissed, it could not decide the question of whether or not her actions amounted to gross misconduct, justifying dismissal. The tribunal indicated that the school’s smoking policy would have been relevant to an unfair dismissal claim.
The company’s smoking policy prohibited smoking on school premises, but did not prohibit the use of e-cigarettes at work. Therefore (and this is the part that is most relevant) IF the respondent had been dismissed, she could have argued that it was unfair to dismiss her as using an e-cigarette was not expressly prohibited on school premises and the possibility there lies that she may in that circumstance been successful of a claim at tribunal.
Therefore the moral of this particular case is that if you do not wish for employees to use e-cigarettes at work or on the premises of work (expect for agreed smoking areas) you must ensure you update your smoking policy to this effect.
