Ahead of National No Smoking Day on 11 March, Donald MacKinnon, director of legal services at Law At Work looks at how e-cigarettes are changing the face of smoking in the workplace.

“Since the introduction of a total ban on smoking in the workplace in 2006 (for Scotland and the following year for the rest of the UK), cigarette breaks have become far more obvious to everyone. “Smokers are now pariahs at work and are seen spending their working time huddled outside in the rain. On average, a smoker spends approximately an hour on ‘fag breaks’ – which over a working life is a year spent away from their desks. Another study found that 30 per cent of smokers used more than an hour a day smoking up to 20 cigarettes just during work hours alone.

“With so much working time lost and the potential health damage to their staff, it is no wonder that employers brought in policies to manage the smoking situation. However, the rise of the e-cigarette has thrown all this hard work up in the air. Working Time Regulations stipulate that most employees are entitled to one unpaid 20-minute break during a working day of longer than six hours. Britain’s workers are well known for working some of the longest hours in Europe and experts back up the claim that regular breaks (time away from the computer screen, stretching your legs) is good for you.

Yet, while some employers recognise that e-cigarettes can be used successfully by employees to wean themselves off the hard stuff – in turn reducing the amount of time spent away from their desks – few are likely to have a policy on their usage in the workplace. There is currently no legal imperative to prevent employers allowing the use of e-cigarettes at work, however, few will want them to be smoked in the presence of others, due to company image (even though no ill health aspects to passive smoking from them). Failure to adhere to an employer’s smoking policy can, and does, result in disciplinary action, up to and including dismissal. Increasingly, employers are taking a harder line in relation to the use of e-cigarettes at work. However, care needs to be taken to ensure that employers have up to date policies on the use of e- cigarettes at work.

Cautionary tale from the tribunals – Insley v Accent Catering.

In a recent employment tribunal case, a school catering assistant claimed that she had been constructively dismissed by her employer after a complaint was received by the employer from the Headteacher that Ms Insley had been seen using an e-cigarettes in front of pupils.

The employer convened a disciplinary hearing and warned that this was potentially gross misconduct. Ms Insley resigned prior to the hearing. The tribunal did not uphold the employee’s claim. She had resigned too early – the employer hadn’t yet reached a decision on whether or not they were going to dismiss her. Had they dismissed though, they might have had a challenge in showing that it was gross misconduct as the policy in question only covered cigarette smoking and not e-cigarettes.

Organisations have a difficult juggling act to perform for their staff. Balancing carefully the negative associations of lost working time against the positive aspects that breaks (whether for smoking or not can bring) including the opportunity for colleagues to socialise with each other, helping to build team morale and the exchange of views and ideas. So where does this leave organisations today? Simply that no matter what their views are on e-cigarette use, they must build it into the employee policy if they want a consistent approach to managing their staff.