E-Cigarettes - does your smoking policy cover vaping?

The use of e-cigarettes has exploded in the last couple of years and there are now an estimated 2 million users in the UK.  The Employment Tribunal has recently considered a case on the subject of vaping (smoking an e-cigarette).

A school catering assistant, Ms Insley, was spotted vaping in front of pupils.  The head teacher of the school complained to her employer, Accent Catering,  who invited her to attend a disciplinary meeting to decide whether her actions were serious enough to justify dismissing her.  Ms Insley resigned and claimed that her employer had constructively dismissed her. 

The Employment Tribunal held that Accent Catering had acted properly in asking her to attend the disciplinary meeting.  Ms Insley's constructive dismissal claim therefore failed.  Having made this decision, the Tribunal did not need to go on to consider whether dismissing Ms Insley for vaping would amount to a fair dismissal.  However, the Tribunal did note that when considering such a question, the employer's smoking policy would be relevant.  The school's smoking policy banned smoking on school premises but did not refer to vaping.  Had Ms Insley been dismissed, she may well have been able to claim her dismissal was unfair as the smoking policy did not refer to vaping.

This case is a timely reminder to employers to review their smoking policies and ensure that they cover the ever increasing use of e-cigarettes. 

Petra Venton