“Vape” was the English word of 2014, according to the Oxford English Dictionary. This was the first time that many people will have become familiar with the concept of e-cigarettes and, particularly, ‘vaping’. E-cigarettes are battery operated devices, shaped like cigarettes or cigars, which have a heating element that vaporises a liquid solution and the vapour is then inhaled. The liquid usually contains nicotine, and may contain flavouring (a vaping café in Shoreditch boasts dozens of flavours, including bubblegum).

In the UK, smoking was banned inside public places in July 2007. However, e-cigarettes are almost certainly not covered by the statutory smoking ban – they do not, after all, involve smoke. At the same time, there is no consensus in respect of the risks and benefits posed by e-cigarettes from a health perspective. For example, it is not clear whether they are an effective aid to stopping smoking, and in any event most people vape a solution which contains nicotine, in which case vapers will remain addicted to nicotine.

The starting point from an employer’s perspective might be that the potential health benefits of vaping are such that it should be encouraged. Employers might therefore consider allowing vaping at work, on the basis that healthy employees (i.e. those who might otherwise be smoking) will be more productive and take less sick days. On the basis of current legislation this approach shouldn’t be problematic. However, problems are likely to arise when such a policy is challenged by a smoking or non-vaping colleague.

E-cigarettes can look very similarly to tobacco cigarettes, and the vapour which is produced looks vaguely smoke like (though it is currently considered to be generally harmless). Aside from any potential negative impact of vaping on air quality, employees may find the use of e-cigarettes in the workplace by colleagues irritating or uncomfortable. This may be particularly true of smokers, who will resent being compelled to smoke in a designated outside area whilst e-cigarettes are vaped indoors. Smokers who are attempting to quit may also feel unsupported by the above policy.

In most cases we imagine that e-cigarettes will be included in a no-smoking policy and banned from the workplace. In which case, it is imperative that the relevant policy is updated to deal with e-cigarettes – employers can’t rely on existing legislation, or in most cases their existing policy, to prohibit vaping in the workplace. The recent case of Insley v Accent Catering, the first vaping case, highlights the potential pitfalls of attempting to rely on an out of date policy (though in that case the Tribunal didn’t have to make a decision on the issue).

In that case, a catering assistant at a school had been seen vaping in view of pupils. The Claimant resigned before a disciplinary hearing, and her claim of constructive dismissal was dismissed. If the Tribunal had been required to decide whether her actions amounted to gross misconduct, the school’s smoking policy – which banned smoking on school premises but didn’t mention e-cigarettes - would have been relevant.

Acas has issued a short guidance note entitled ‘E-cigarettes in the workplace’, which addresses many of the issues raised above. Whilst much of this is common sense, the guidance does neatly capture the issues which an employer is likely to face when the permissibility of vaping is raised by an employee. Employers may well be reassured to see that this is undoubtedly a grey area and a decision will need to be made by an employer regarding the risks and benefits of e-cigarettes (both to users and those nearby).

Posted on 27/02/2015 in Legal Updates

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