Can you smoke an e-cigarette at work? Unless your company’s no smoking policy specifically prohibits this, then yes you can. No doubt there are many employers who will be surprised by this finding as the commonly held view is that electronic cigarettes, or e-cigarettes, are covered by the smoking ban.

Smoking is banned in workplaces and premises open to the public. However, under the smoke-free legislation only the smoking of lit tobacco or any other lit substance is prohibited. E-cigarettes give off a nicotine-infused vaporised mist. They do not contain any material that can be burnt, therefore they fall outside the ambit of the smoking ban. If an employer wishes to ban the use of e-cigarettes in the workplace, they must specifically provide for this in their no-smoking policy.

The case of Insley v Accent Catering has shed some light on the issues surrounding e-cigarettes in the workplace. Mrs Insley worked as a catering assistant at a school. In March 2014, she was reported for smoking an e-cigarette on the school premises. Disciplinary proceedings were begun, with the company alleging that smoking of the e-cigarette amounted to gross misconduct.

Mrs Insley resigned from her job during the disciplinary meeting. She subsequently brought a claim of constructive unfair dismissal, alleging her employer had breached the implied duty of trust and confidence in its handling of the disciplinary process.

The Employment Tribunal noted that had Mrs Insley been dismissed the Tribunal would have had to decide whether it was reasonable to view her conduct as gross misconduct. Although smoking on the premises was potentially gross misconduct, it was not clear whether the fact that Mrs Insley had been smoking an e-cigarette should have made a difference to how her conduct was viewed.

This was a point of concern for the Employment Tribunal who said:

“It is not clear that smoking e-cigarettes is a breach of anybody’s policy.” Employment Tribunal

By specifically naming e-cigarettes in its no-smoking policy, an employer can avoid room for doubt over whether or not its employees are free to smoke these devices in the workplace .

Main photo: “Man using an electronic cigarette” by Flikr user Jonny Williams used under Creative Commons Atribution 2.0 licence