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E-cigarettes in the workplace

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A Q & A as featured in Personnel Today

1. What’s the legal position on e-smoking at work?

Smoking indoors at work premises and other enclosed spaces in England became unlawful on 1 July 2007. The ban applies to all substances which can be smoked, including cigarettes, herbal cigarettes, cigars and pipes.

Whatever form it takes, the act of smoking requires a substance to be burnt. E-cigarettes give off a vaporised water-based mist but do not contain any burning substances.
Therefore, strictly speaking, they don’t fall within the smoking ban. Perhaps this is why e-cigarettes are so popular and traditional smoking is at an all time low.

The significant take-up of e-smoking has prompted a government debate over the last few weeks, and it seems there are now plans to make the sale of e-cigarettes to under-18’s, or to adults on their behalf, illegal. This is largely because the effects of e-smoking are unclear.

The new rules are expected to be in force by Autumn 2014, making it a good time to re-assess your workplace rules on smoking.

2. We don't have a policy that prevents staff from using e-cigarettes in the office. We’re starting to get complaints from non-smoking staff about the vapour. What should we do?

The law doesn’t prevent you from implementing a policy banning the use of e-cigarettes at work. If you are minded to do this, it’s best to have a clear written policy in place so that there is no confusion over what is, and what isn’t, allowed.

Any smoke-free policy, whether it extends to e-cigarettes or not, should apply to staff of all levels without exception and even extend to third parties such as customers, visitors and contractors.

3. Staff who are trying to quit smoking using e-cigarettes are complaining that they will struggle if they’re forced to use e-cigarettes in the same area as tobacco smokers. Do we have to provide a separate area for e-smokers?

First of all, the law does not require you to provide a smoking area at all. There are a couple of ways to approach the issue and it’s important to give consideration to the most suitable option for your workforce.

If you choose to designate an area for tobacco smokers, as most employers do, you must make sure that it’s legally compliant – it can’t be enclosed, or substantially enclosed, and the smoke must not be able to enter the rest of the workplace. It’s also sensible to provide waste bins for the disposal of cigarette ends and other litter.

If you’re willing to designate a separate area for e-smokers, which is less common and not compulsory, these strict requirements will not apply. You should give some thought to the most suitable e-smoking arrangements for your workforce to minimise the chances of receiving complaints from tobacco smokers and/or non-smokers.

One particularly robust option is to prohibit workplace e-smoking and smoking altogether. Although this is a very restrictive approach, some employers wishing to depict a professional public appearance have successfully banned workers from doing so both inside and anywhere nearby their premises.

4. Some of my e-smoking staff have complained that they don’t get as many breaks as tobacco smokers. What should I do?

Employers are not obliged to allow smoking breaks in addition to the usual work-day breaks, and there is increasing evidence that they disrupt productivity and hinder performance, as well as upsetting non-smokers who may miss out.

If this is a problem for your business, you might wish to implement a policy which prohibits such additional “comfort” breaks during the working day – leaving employees to use e-cigarettes or smoke during their usual breaks and outside working hours.
Some employers ask e-smokers and smokers to make up any time spent on additional breaks during work hours, but the success of this very much depends on the workplace environment, industry and culture.

Usually, the best option is to allow some flexibility where appropriate but be firm and consistent where the boundaries are tested by staff.

5. Can I dismiss an employee for smoking an e-cigarette at work?

There hasn’t yet been a legal case involving dismissal for using an e-cigarette at work, although a well-publicised dispute involving a waste disposal vehicle driver, may well be the first one.

The driver was summarily dismissed for, allegedly, smoking whilst operating a waste disposal vehicle at work. He claims that it was an e-cigarette and that he didn’t know he couldn’t use it when he was on duty.

His employer found against him at both the disciplinary hearing and appeal stage as it was, of course, entitled to do.

It seems the driver concerned continues to dispute the legal fairness of his dismissal and intends to pursue an Employment Tribunal claim. If lodged, the case will apparently be funded by the driver’s preferred e-cigarette maker which is unprecedented.

The main point here though is that, as long as you have a clear and consistently applied policy providing that e-smoking and smoking at work is prohibited and may be treated as gross misconduct, and you follow a fair and reasonable process, you will be entitled to dismiss.

If you’re ever in any doubt about what to do, the best option is to take specialist legal advice before taking any action.

Written by Victoria Clark, Associate in the employment team - to contact Victoria please call 0113 336 3414 or send an email to victoria.clark@clarionsolicitors.com. 

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