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Do you want to stub out e-cigarettes in the workplace?

E-cigarettes appear to becoming more popular and with statistics suggesting that over two million UK adults use e-cigarettes, employers are going to have to consider how to deal with this issue.

An Employment Tribunal has recently decided what we believe to be the first case concerning the use of e-cigarettes. The Tribunal had to consider a constructive unfair dismissal claim brought by a school catering assistant who was invited to a disciplinary hearing to consider allegations against her relating to her use of an e-cigarette in front of pupils.

The claim was dismissed but the Tribunal made it clear that it had not been asked to consider whether or not the claimant’s actions constituted gross misconduct, rather whether her contract had been breached by the disciplinary action. Had this question been considered, the Tribunal indicated that the school’s smoking policy would have been highly relevant to determining if the dismissal was fair. It was noted that the school’s smoking policy did not expressly forbid the use of e-cigarettes or “vaping”.

What is clear, is that if employers wish to reserve the right to fairly dismiss employees for using e-cigarettes or “vaping” in the workplace, any policy will need to explicitly refer to this and not just smoking cigarettes.

Acas has also produced some useful guidance on the topic that raises a number of interesting points for employers to consider which can be accessed here.

Please feel free to contact us on 0191 282 2880 for a no obligation chat or email us if you require further advice.

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