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Smoking e-cigarettes: Are they lawful in the workplace?

From 1st July 2007, smoking in enclosed or substantially enclosed public places and the workplace in England has been prohibited. Smoking is defined in the Health Act 2006 as “Smoking tobacco, or anything which contains tobacco or smoking any other substance.”

Since then there has been an increase in the use of E-cigarettes; however does this legislation apply to E-cigarettes and can employees smoke E-cigarettes in the workplace without being disciplined?

This was considered recently by an Employment Tribunal in the case of Insley v Accent Catering.

Ms Insley, a store-catering assistant, had been invited to a disciplinary hearing to consider allegations that she was seen smoking E-cigarettes in full view of people. Ms Insley resigned before the disciplinary hearing was convened and alleged that she had been constructively dismissed.

The Employment Tribunal did not uphold Ms Insley’s claim of constructive unfair dismissal. However, the Employment Tribunal did state that because the company did not have a policy, which prohibited E-smoking in the workplace, and if the company dismissed Ms Insley, it is likely that the dismissal would have been unfair.

This case suggests that if employers wish to prohibit the smoking of E-cigarettes in the workplace, it cannot rely on provisions set out in the Health Act 2006. Organisations should have a clear policy and procedure, which deals with smoking in the workplace to include E-cigarettes. Employers can then rely on such a policy or procedure should it need to discipline employees who breach the policy by smoking E-cigarettes in the workplace.

If you would like any further assistance in relation to the content of this issue or require advice in preparing a policy, then please do not hesitate to contact Sejal Raja

Sejal Raja
020 7227 7410

April 2015
© RadcliffesLeBrasseur


This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.