The introduction of the smoking ban on 1st July 2007, pursuant to the Health Act 2006, prohibited smoking in all public places, including offices and work spaces. Technically, e-cigarettes do not fall within this legislation as the ban applies to substances that can be burnt, however many employers have decided to ban these devices along with traditional cigarettes.
Recently, the Employment Tribunal heard the case of Insley v Accent Catering and considered whether the employer had acted fairly in taking disciplinary action against an employee for using an e-cigarette on a client’s premises. This is one of the first ‘vaping’ cases which has been addressed by the Tribunal.
Ms Insley was employed as a catering assistant by Accent Catering, who provided catering services at a secondary school. The head teacher at the school saw Ms Insley using an e-cigarette in front of students and made a complaint to Accent Catering, who held an investigatory hearing and then suspended Ms Insley.
They had arranged for a disciplinary hearing to take place, which would have determined whether Ms Insley would have been guilty of gross misconduct for bringing Accent Catering into disrepute. However, Ms Insley had resigned before the disciplinary hearing and brought a constructive dismissal claim against her employer on the grounds of their alleged breach of trust and confidence.
The Tribunal held that there was no breach of trust and confidence because the employer had adopted a fair and reasonable procedure and the suspension was appropriate because a client had made a complaint.
As Ms Insley had resigned, it was not necessary for the Tribunal to decide whether the employer was justified in characterising her actions as gross misconduct. However, the Tribunal did stress that, although the employer clearly considered vaping to be the equivalent of smoking an ordinary cigarette, it was unclear that Ms Insley had breached any policy by using an e-cigarette. Therefore, had Ms Insley been dismissed, the Tribunal may have considered the dismissal to be unfair as the school’s no smoking policy did not expressly exclude the use of e-cigarettes.
It is important to note that Ms Insley had not been informed of the specific rule she had broken because there was no rule in force prohibiting the use of e-cigarettes. Arguably, the only relevant policy in place was a conventional no-smoking policy.
This case highlights the importance of ensuring employers have robust smoking policies in place. If employers wish to ban vaping, they should expressly include a prohibition against the use of e-cigarettes in their policies and inform employees of the sanctions that they can expect to face if they fail to adhere to these.
From a practical perspective, employers should also consider extending the policy to visitors, clients and third parties, in addition to their employees, who will be entering their premises.
If you wish to obtain any advice on reviewing, amending or implementing an effective no smoking policy or discuss any other employment issue, please contact Jack Khurana, Head of the Employment Department on 0116 289 7000.
Bhavika Mistry, Trainee Solicitor