Case update (3): Unfair dismissal – e-cigarettes

unfair-dismissal-250Summary: Is it fair to dismiss for ‘vaping’ on an e-cigarette?

Yes, but probably not if you do not have a policy on the use of e-cigarettes, says the Tribunal in Insley v Accent Catering (although, please note that the Tribunal made this comment as an aside or ‘obiter’ as it was not asked to decide on this issue).

Facts: This is one of the first cases concerning the use of e-cigarettes in the workplace. The Tribunal claim itself was brought by a school catering assistant who resigned ahead of a disciplinary hearing for “bringing the company into disrepute by smoking an e-cigarette on school premises in full view of the students”. The Tribunal dismissed the claim, holding that the employer had not breached the employee’s contract of employment by initiating disciplinary proceedings.

However, more importantly, the Tribunal’s Employment Judge went on to comment that had the employee not resigned when she did but had then been dismissed, the dismissal may well have been unfair. The Employment Judge noted that the school’s smoking policy banned smoking but did not expressly forbid the use of e-cigarettes and “vaping” (as using e-cigarettes is known). The Tribunal considered that “vaping” is not the same as smoking and noted that, in particular, it does not meet the statutory definition of smoking as set out in the anti-smoking legislation.

Implications: The rise in popularity of “vaping” means that employers should give thought as to how to deal with this issue amongst their staff. This case is a useful reminder to employers to ensure clarity in smoking policies as to how e-cigarettes are viewed. If “vaping” is to be regarded as (gross) misconduct then this should be clearly spelled out. ACAS has produced useful guidance on this topic available here.