We are probably all accepting of smoking at work policies (or more to the point of not smoking at work).  How many employers though include a ban on “smoking” e cigarettes at work? You don’t? Then you had better read on! There was a case recently where a catering assistant was almost dismissed for smoking an e cigarette. The case went to employment tribunal.

 In Insley v Accent Catering (the company providing the catering service to the school), the employee was witnessed by the Head Teacher of using an e cigarette in front of pupils. This was reported to Accent who instigated an investigation and suspended the employee.  Before it reached a disciplinary hearing, the employee resigned and claimed constructive dismissal for breach of trust and confidence. The tribunal considered the case but determined that trust and confidence had not been breached because the employer had adopted a fair and reasonable process.  So far so good for the employer.

However, the tribunal went on to state that if there had been a disciplinary hearing resulting in a dismissal based on bringing the reputation of the employer into disrepute, the dismissal may have been regarded as unfair because although there was a smoking policy that banned smoking on the school site, it did not specify that e cigarettes were also included.

 Acas guidance describes how an employer may allow (or not) the use of e cigarettes on site. However, if they are to be banned, it should be made clear in policy.

 So while “smoking” e cigarettes isn’t regarded as smoking (technically the terminology is “Vaping”) you can get caught out for disciplining someone if there is no specific reference in your Smoking policy.

 Therefore, it would be advisable to include in your policy the school’s position to e cigarettes. If you do allow them, you must state when and where they can be used.

Acas guidance can be found by clicking here