Action on Smoking and Health (ASH) in May 2015 estimated that 2.6 million adults in Great Britain currently use electronic cigarettes. Of these, approximately 1.1 million are ex-smokers while 1.5 million continue to use tobacco, alongside their electronic cigarette use. Yet electronic cigarettes are not subject to the ban on smoking in the work place introduced in Scotland in 2006, which only relates to lit substances.
E-cigarettes in the work place therefore pose a difficult question for UK employers. Should you treat them as if they are cigarettes or have different rules for their use?
I would advise all employers that it is crucial that they review their smoking policies for two important reasons.
Firstly employers must consider the health risks. E-cigarettes are indeed considered less harmful than conventional tobacco cigarettes and are used by some to help them quit smoking. However the health effects of e-cigarettes and passive “e-smoking” are not fully understood. There still remain question marks over the safety of second hand vapour which will certainly contain traces of nicotine and other toxic substances. Permitting e-smoking in the work place may create the potential for future unwanted claims.
Secondly businesses must take note of a warning following the first employment tribunal case in the UK involving the use of e-cigarettes. The case focuses on a school catering assistant who was seen using an e-cigarette in full view of pupils. The headteacher reported the incident as smoking was not allowed on the premises. A disciplinary hearing was arranged but before it took place the catering assistant resigned claiming she had been constructively dismissed. The tribunal dismissed the claim but it indicated that if her employers had attempted to dismiss her on the grounds of gross misconduct, they would have faced the risk of a successful unfair dismissal claim as their smoking policy did not state that the use of e-cigarettes was prohibited.
It is clear that employers cannot rely on the legislation or their own policies that prohibit smoking to control the use of electronic cigarettes in the workplace and employers who decide that e-cigarettes should not be permitted must amend their non-smoking policies accordingly.
If I can help preparing an appropriate smoking policy for you or answer any questions please contact me by email Angela@mitchells-roberton.co.uk or by telephone 0141-552-3422.