Vaping in the workplace: employers go full steam ahead

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Ever since the smoking ban came into force in 2007 the number of those turning to alternative means to keep their nicotine cravings calm in public spaces has been on a steady increase. However, more recently many are ditching the patches and gum in place of picking up pen-like devices known as e-cigarettes.

E-cigarettes are battery powered gadgets generally designed for people wishing to give up smoking. The device vaporises water-based liquids, much like an inhaler. Whilst an unscented smoke-like steam is released, no harmful toxins are emitted. Use of an e-cigarette is colloquially known amongst its biggest fans as ‘vaping’.

Vaping is becoming a growing trend and it is more and more common to see a blue neon light at the end of people’s fingers instead of the familiar yellowy-red glow of a burning flame. Such a sight is veering towards an every-day occurrence in the workplace, where groups of employees huddling together trying to ‘light up’ in the pouring rain are becoming a thing of the past.

But what does the use of e-cigarettes in the workplace mean for employers?

Whilst employers are of course bound to abide by legislation governing the use of cigarettes and smoking in the workplace, there is little guidance currently on offer regarding the use of e-cigarettes.

Despite this, vaping is certainly sparking up debate. Whilst some employers will be happy that their workforce is no longer nipping out for a regular fag[***] break, many will be taking the opinions of their clients into consideration when deciding which side of the fence to sit on.

Certain industries, such as those where employees are customer facing or work with children, have been invoking disciplinary action for those caught with an odourless cloud of steam sitting atop their heads, with some employees even facing dismissal in extreme cases. Michelle Capewell, an ex-employee of PixiFoto, has launched an Employment Tribunal claim alleging to have been sacked on the spot for vaping in the workplace.

There’s no smoke without fire, or is there?

Employers taking such a stance need to be aware of the risks involved. Individuals will have a right to recourse against their employer if they have been subject to such action when there is no policy in place governing the same. Too many employers are falling into the trap of using statutory smoking legislation as a catch-all policy, forgetting the fact that those who vape are in fact classed as ‘non-smokers’.

Employers can reduce the risk of being met with employment claims, including unfair and constructive dismissal, by instigating a policy on the use of e-cigarettes which clearly defines the procedures and penalties in place. If employees are aware of the potential sanctions for vaping in the workplace then employers are far more likely to be able to show a Tribunal that their actions were reasonable.

The policy need be no different to other policies implemented. However, employers should ensure that any new practices or changes are communicated effectively to all staff and should further make certain that there is transparency regarding the course of action should a breach occur.

Continuous health crazes and medical warnings filling our smart-phones and newspapers seem to suggest that vaping isn’t just a New Year’s fad. Employers are best advised to put a policy in place detailing their attitude to vaping, before they get their fingers burnt.

Adrian Hoggarth is a Partner and Head of Employment, and Kate Newbury is a Legal Assistant, at Prolegal Limited.

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