There are plenty of Employment Tribunal cases where people have been fairly dismissed for smoking at work in breach of an employer’s no smoking policy, but what about where the employee is using an e-cigarette (often called “vaping”), rather than smoking tobacco?
A recent Tribunal case involved a catering assistant, Ms Insley, who was employed by a catering company to work in a secondary school and the Tribunal heard how the headteacher had allegedly seen Ms Insley vaping in “full view of pupils”.
Ms Insley reportedly resigned just before a disciplinary hearing in relation to the alleged incident and because she resigned before the hearing, the Tribunal was unable to consider whether her alleged vaping had amounted to misconduct on her part. The Tribunal
commented, however, that if it had had to consider whether she was guilty of misconduct, then the school’s no smoking policy would have been a relevant factor in this. The school’s policy is said to have made reference to “smoking on school premises”.
The relevant anti-smoking legislation defines “smoking” as an act involving lighting a substance. If the Tribunal had had to consider whether Ms Insley had breached the school’s no smoking policy, then it is quite possible that it would have concluded that
vaping was not banned by the policy and that consequently Ms Insley’s actions did not amount to misconduct.
The case should therefore remind all employers to make sure that their policies keep up to date with the world as it advances and employers need to review their no smoking policies if they want to be able to take disciplinary action against employees who vape
at work. If employers want to be able to dismiss employees for vaping in the workplace, then they need to make it very clear to their employees within a relevant policy that vaping is banned and could lead to the sack. Otherwise any dismissal could well be
unfair and could lead to a costly Employment Tribunal claim.
In any event, and as a matter of good practice, employers should ensure that their staff handbooks and employment contracts are reviewed as a whole every 12 months, so any potential new issues (such as vaping in the workplace) can be recognised and taken into
account in the documentation.
From an employee perspective, if Ms Insley had not resigned when she did and had allowed matters to progress to a disciplinary hearing, then if that hearing had led to her dismissal she could well have been able to bring a successful unfair dismissal claim.
The lesson here for employees therefore is to take considered and practical legal advice before resigning in such circumstances, as resigning before a disciplinary hearing may well rule out any chance of success in Employment Tribunal proceedings.
For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact
of the Berg Employment Team on 0161 833 9211 or email him at
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(The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional legal advice should
be obtained before taking, or refraining from taking, any action as a result of this article.)