A burning issue - vaping in the workplace

In the last few years, ‘vaping’, (or smoking e-cigarettes) has become a commonplace feature of our society. Whether you’re walking down the high street, sitting in traffic, or having a coffee, you’re likely to see someone puffing away on an electronic cigarette.

Unlike traditional cigarettes, e-cigarettes are not caught by the UK’s ban on smoking in enclosed public spaces as they do not contain any ‘combustible material’ eg. tobacco. This means that it is not illegal to ‘vape’ in enclosed public places.

Whilst this is good news for ‘vapers’ who do not want to face the elements, vaping in public places has become a matter of controversy and this is particularly so when it comes to the workplace.

Just because something is legal, does not mean that it is not annoying and potentially harmful to those around you. Non-vaping employees are likely to take exception to colleagues who spend the day puffing on electronic cigarettes, emitting various vapours. However, if e-cigarettes are banned in the workplace, will vaping employees feel targeted and treated less favourably than their non-vaping colleagues? It is this type of occurrence which can cause tension and morale issues in the work environment.

So, what are the rules for vaping at work?

• It is not illegal to smoke e-cigarettes in a public place which includes the workplace.
• If employers do not want staff to vape at work, this would be a matter for the employer to decide and enforce through a clear policy.
• Employers cannot rely on their conventional ‘non-smoking policies’ to enforce a vaping ban, if the non-smoking policy refers only to tobacco-based products. In the recent case of Insley v Accent Catering the tribunal indicated that employers cannot use their ‘non-smoking policies’ to ban e-cigarettes in the workplace, unless the policy specifically refers to them. This first vaping tribunal decision acted as a warning for employers and highlighted the importance of having a clear policy for both cigarettes and e-cigarettes.

Top tips for employers:

• If employers do not want employees to vape at work it would be advisable to introduce and communicate a clear policy to reflect this.
• Employers can adapt their existing ‘non-smoking policy’ to include a ban on e-cigarettes, as well as tobacco products.
• Alternatively, employers can introduce an entirely new policy specifically dealing with e-cigarettes and their use in the workplace.
• As many people use e-cigarettes to help them to quit smoking, employers may want to offer staff a designated ‘vaping area’ away from smokers to assist those trying to kick the habit. It may also any ease tensions in the workplace between vapers and non-vapers.

The health risks surrounding e-cigarettes are still under debate, and it is not clear if the government will extend the smoking ban to include e-cigarettes. Until then, employers have discretion over the treatment of vapers at work.

Jenny works in our employment law team. She helps clients with the full range of employment related matters including TUPE, defending tribunal proceedings, contractual matters and general employee relations and HR work. She has wide experience working for SMEs, owner-managed businesses and organisations employing in excess of 1,500 staff across the UK.