Tribunal warns employers to ensure their smoking policies cover e-cigarettes
The use of e-cigarettes is still a relatively new phenomenon so it is unsurprising that many employers are unsure about how to control their use in the workplace.
E-cigarettes do not technically come within the scope of the smoking ban in workplaces so their use at work is not prohibited under that ban.
An ET has recently considered whether an employer acted fairly in taking disciplinary action against an employee for using an e-cigarette on its premises.
In that case, the Claimant was employed as a catering assistant at a high school. The head teacher saw her smoking an e-cigarette on school premises and in full view of pupils. The school’s policy prohibited smoking on school premises but did not explicitly prohibit the use of e-cigarettes. The Claimant was invited to a disciplinary hearing to answer the charge of smoking but she resigned before the hearing could take place and brought a claim of constructive dismissal.
As this was a claim of constructive dismissal, the ET had only to decide whether the school had acted so unreasonably in requiring the Claimant to attend a disciplinary hearing that it breached the implied term of trust and confidence The ET ruled that there had been no breach on the facts of that case.
The tribunal stressed that it was not necessary in that case to decide whether the employer was justified in characterising the Claimant’s actions as gross misconduct. However, the tribunal did identify as a point of concern that, while the employer considered using an e-cigarette to be the equivalent of smoking an ordinary cigarette, it was not clear that the Claimant had breached any policy. There was no rule in force prohibiting the use of e-cigarettes. The only relevant policy in place was a conventional no-smoking policy.
An important factor when deciding whether an employer has acted reasonably in dismissing an employee is whether the employee has breached one of the employer’s rules. It is more likely to be fair if the employer can point to breach of a specific rule.
This case sounds a warning that an employer’s current smoking policy may not justify taking disciplinary action against an employee for using an e-cigarette at work. Instead, it will need to consider amending its policy to prohibit use of e-cigarettes.
If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to firstname.lastname@example.org
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