Should you let staff and freelancers smoke e-cigarettes at work?

Legislation has existed since 1st July 2007 - following earlier bans in Scotland and Wales - which makes it illegal to smoke in enclosed public and work spaces. Employers will now usually only allow smoking on their premises in designated outside areas. The law also covers work vehicles.‍

The current law on smoking requires that businesses:

• Display ‘no smoking’ signs in all workplaces and vehicles
• Make sure people don’t smoke in enclosed work premises or shared vehicles
• Staff smoking rooms aren’t allowed - smokers must go outside.

Fines and penalties

The law is enforced by Local Authorities, and workers and freelancers can be fined up to £200 if they smoke in the workplace (£50 in Scotland).

Businesses can be fined up to £2,500 if they don’t stop people smoking in the workplace or up to £1,000 if they don’t display ‘no smoking’ signs.

In Scotland, there is a fixed penalty fine of £200, which can go up to £2,500 if the fine isn’t paid.

Smoking in work vehicles

Smoking isn’t allowed in any work vehicle that more than one person uses, although a worker can smoke in a company car that only they use if their employer agrees to this.

The law on e-cigarettes?

However, this law doesn’t apply to e-cigarettes. Currently, electronic cigarettes are only covered by consumer product regulations, although from July 2016 they'll come under the revised EU Tobacco Products Directive.

In the summer of 2014, the government had already confirmed they wouldn’t ban e-cigarettes indoors in England, despite the World Health Organisation urging governments to do so to combat the threat posed by the growing popularity of vaping.

Therefore, employers are currently free to decide if and where e-cigarettes can be used on their premises or not.

ACAS have issued guidance and advise that employers should carefully consider the implications for their own business when deciding what to do about e-cigarettes within their workplace and need to consider that:

• Some employees use e-cigarettes as part of a plan to stop smoking, so employers may want to support their use if this is the case
• However, the vapour from e-cigarettes might be annoying to some employees and could potentially prove a health risk for others through passive consumption (like passive smoking) as the long term health effects of e-cigarettes are unknown.

Should employers forbid the use of e-cigarettes at work?

There may be a concern that preventing the use of e-cigarettes at work may hinder those who use them to stop smoking, particularly if they’re required to smoke them in designated smoking areas with regular cigarette smokers. Employers may want to consider organising a separate e-cigarette smoking area external to work premises, rather than letting staff vape at their desk.

Employers should have clear rules about smoking and e-cigarettes

Employers should be clear about what their rules are on the use of e-cigarettes at work. If they already have a policy on smoking, they could include information about e-cigarettes in there.

Employers may want to put up signs or notices in the workplace which make it clear where smoking is allowed (if this is the case) and where it’s banned. These should include rules for both cigarette and e-cigarette smokers.

Non compliance

• It should be made clear in the rules that any unauthorised or excessive taking of smoking or e-smoking breaks will result in disciplinary action
• It should be made clear that any smoking of cigarettes or e-cigarettes in an unauthorised area at work will result in disciplinary action
• Employees should be reminded that it's a criminal offence, which will attract a fine, to smoke in a designated smoke-free public area.

Insley v Accent Catering

In February 2015, the first case concerning the use of e-cigarettes in the workplace came to Employment Tribunal (Insley v Accent Catering).

Insley, a school catering assistant, resigned after being suspended ahead of a disciplinary hearing for potential gross misconduct for “bringing the company into disrepute”. The head teacher had witnessed Insley using an e-cigarette in front of pupils arriving at the school and made a complaint to the catering company, who held an investigatory hearing and suspended Insley, prior to a disciplinary hearing. Insley resigned before the hearing and claimed constructive dismissal for breach of trust and confidence.

The tribunal decided she hadn’t been constructively dismissed as there was no breach of trust or confidence; the employer had acted properly and followed a fair and reasonable procedure. They also argued the suspension was appropriate because a client had made a complaint. However, the tribunal made the point that if Insley had been dismissed as a result of the disciplinary hearing, the dismissal might’ve been considered unfair, primarily because the school’s no smoking policy didn’t specifically prohibit the use of e-cigarettes (and because CCTV footage of the incident wasn’t shown to Insley).

So, Employers should follow Acas guidance and specifically include the use of e-cigarettes in the workplace (if allowed, where, when) in your Smoking Policy, in order to be able to take disciplinary action against employees inappropriately using e-cigarettes.

If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk  - a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.

Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.