A ‘burning’ issue for many employers recently has been the position regarding the use of e-cigarettes (devices that mimic tobacco smoking) in the workplace. So-much-so that Acas has issued guidance, as e-cigarettes fall outside the scope of smoke free legislation because the act of smoking requires a substance to be burnt. The first known case to reach the employment tribunal system is Insley v Accent Catering ET/3200687/2014, where a school catering assistant was suspended for using an e-cigarette on school premises.

Ms Insley was employed by Accent Catering who provided catering services at a secondary school. The head teacher 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 then suspended Insley, prior to a disciplinary hearing, which would determine if Insley was guilty of gross misconduct for bringing her employer into disrepute. Insley resigned before the hearing and claimed constructive dismissal for breach of trust and confidence.

The tribunal decided that there was no breach of trust and confidence because the employer had adopted a fair and reasonable procedure and 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 have been considered unfair primarily because the school's no smoking policy banned smoking on school premises, but did not specifically prohibit the use of e-cigarettes.

As the Acas guidance points out, employers can choose whether to allow employees to use e-cigarettes at work or not and adapt their smoking policies accordingly. If e-cigarettes are banned, it should be made clear that any use of e-cigarettes in a prescribed work-related area will result in disciplinary action. If e-cigarettes are allowed, it should be made clear where they can be used and any unauthorised taking of e-smoking breaks will result in disciplinary action.

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