This is the first Tribunal decision involving e-cigarettes in the workplace.

E-cigarettes are a bit of a hazy issue for employers so we hope this week’s case will clear the air a little.

The question this week is whether being suspended for smoking an e-cigarette amounts to constructive dismissal?

Ms Insley, the Claimant, was employed by Accent Catering, the Respondent, as a Catering Assistant for a secondary school.

The head teacher caught the Claimant smoking an e-cigarette on school grounds in front of pupils. He reported this to the Respondent and said he believed the Claimant’s actions amounted to gross misconduct.

The Claimant was suspended for bringing the Respondent’s reputation into disrepute and was invited to a disciplinary hearing to decide whether her actions justified dismissal. The Claimant resigned before the hearing could take place and then claimed constructive dismissal.

As the Claimant was never formally dismissed or indeed disciplined the tribunal had to decide whether the Respondent’s actions had breached the terms of the Claimant’s contract. The tribunal ruled in favour of the Respondent however it also stated after examining the Respondent’s smoking policy that the Claimant’s actions did not amount to gross misconduct.

This was due to the smoking policy being based on the Health Act 2006 which only covers tobacco cigarettes. E-cigarettes are vapour based and are not covered by the Act. The Tribunal highlighted its concern as it believed that the Claimant had not breached this policy even if her conduct had been inappropriate. Had the Claimant been dismissed a claim for unfair dismissal could have gone in her favour.

The lesson here for employers is simple, have a clear smoking policy that covers e-cigarettes!

The take away point for employees is that it is almost always better to be pushed than to jump.

E-cigarettes are not covered by the Health Act and in 2016 they could be prescribed as a medicine to help smokers give up, so now is the time to act! A clear policy on smoking and e-smoking will give employers a firm leg to stand on should any breaches arise.