Employment Law: The Smoking Ban, the Development of E-Cigarettes and the position of Employers.
15th January 2016
It is now commonly understood and accepted that there is a ban on people within the UK smoking within public buildings, or within a set distance from their entrances. Failure to abide by this can lead to hefty fines being imposed upon the person breaching the rules and any organisation that does not seek to make and enforce the appropriate changes.
Clearly it also follows that this is extended and includes places of work, and employers have a duty to enforce the smoking ban. It is also notable that the ban is extended to include smoking in vehicles owned by the employer.
The issue of smoking tobacco is also an area in focus today as the government consider how to address the issue of its affects upon child health, and which is likely to lead to further legislation and prohibitions about where smoking can take place.
Against the increasing number of restrictions there has been a corresponding increase in the popularity and use of e-cigarettes, electronic cigarettes, vaping machines and other alternative methods of enabling a nicotine intake without smoking or the use of patches etc. The purpose of this article will therefore consider how and whether they can be used in a work environment. For the avoidance of doubt, we do not intend to engage here with the question of whether or not they should be banned on a medical or ethical basis.
The use of e-cigarettes technically does not fall under the definition of Smoking under the relevant legislation, as it refers to the ban relating to the smoking “tobacco”, or otherwise to “smoking” another substance. Unfortunately there is no direct legal definition in the statute of Smoking. However, the natural meaning would mean the inhaling of the smoke of a burning substance. Electronic cigarettes therefore do not “burn” anything and as such fall outside of the smoking ban.
Therefore e-cigarettes can in fact be used in the work place, unless the employer wishes to directly ban their use. As such any smoking policy adopted by an employer does not necessarily need to be amended where electronic cigarettes are not expressly included, as no laws are being broken, or encouragement given to such law being broken.
Nevertheless, the banning of electronic cigarettes remains an option which is open to any Employer, and it is within their absolute discretion. Factors to consider will include, but are not limited to:
- a) Whether employers feel that these may in fact be a health and safety risk, either because:
- b) Whether employers feel that the same rules should apply to electronic cigarettes and that their use should be restricted to break-times in order to prevent distraction which may adversely affect work rate etc.
- c) Whether employers feel that the odours given off from the use of electronic cigarettes, particularly with the now wide range of flavours etc, would be distracting or otherwise unpleasant.
- d) The fact that allowing the use of such items may lead to accusations of employees smoking in the workplace and which in turn may then cause a waste of management time in investigating and dealing with such complaints, or may otherwise cause employees to “push boundaries” and attempt to break the law, under the pretence of using e-cigarettes.
- e) Whether employers wish to be proactive and implement such changes ahead of any legislation which keeps being proposed, but which appears to have not gone very far.
i) Of the unknown effects that they may have on third parties,
ii) Of the fact that by using an electronic cigarette it may distract the employee’s attention from their duties which may potentially lead to accidents,
Having reached its decision, if an employer wishes to ban the use of electronic cigarettes in the work place then they may do so. In order to implement such a decision the employer will need to put in place a policy which addresses this point specifically, and sets out any consequences for anyone caught breaching the policy, and should be circulated to all employees. The Tribunals have already got to grips with this issue and held that such policies can be fair and justify the dismissal of those that breach it, but have also been quick to criticise employers that do not have clear policies in place relating to the use of such items where a prohibition has been put in place.
Such a policy should normally be contained as part of a detailed staff handbook. In the event that you require advice or assistance on a Staff Handbook, or indeed the wording of a “non-smoking policy then please do contact us.