Coronavirus: Employer’s resource centre — live guidance available here

No smoke without fire?

Employment Law & HR
BG Purple

A recent tribunal decision carries with it a warning – your non-smoking policy may need a health check.

The case of Insley v Accent Catering involved an employee who raised a claim for constructive unfair dismissal following her resignation over her employer’s attempts to discipline her for smoking an e-cigarette at work.  

Ms Insley was a catering assistant at a school and, according to the school’s head teacher, was seen smoking an e-cigarette in full view of pupils. He complained to her employer who summoned her to a disciplinary hearing. She resigned claiming that her actions had not been serious enough to warrant a dismissal. As no dismissal had taken place (she had merely been called to a hearing) the Tribunal dismissed her claim finding no fault in the actions of her employer. 

However, in considering whether Ms Insley’s actions might have constituted gross misconduct, the Tribunal turned its attention to the employer’s non-smoking policy. As expected the policy prohibited smoking on school property. But was she ‘smoking’?

Legally speaking, a person smokes in the workplace when they smoke lit tobacco or some other substance that can be smoked when lit. Since e-cigarettes emit a vapour from a heated solution which is not ‘lit,’ using an e-cigarette does not fall within the definition of smoking. The tribunal therefore ruled that, had she been dismissed for smoking an e-cigarette, the dismissal would have been unfair as e-cigarettes were not forbidden under the employer’s anti-smoking policy or under the legislation.

It would appear, therefore, that if employers seek to rely on their anti-smoking policies to discipline employees for smoking e-cigarettes at work they need to ensure that their policies explicitly state that smoking e-cigarettes is forbidden.

© Copyright of Law At Work 2021 Law At Work is part of Marlowe plc’s employee relations division