E-cigarettes fall outside the law prohibiting smoking in the workplace and so employers can decide whether to allow them or not. The current legislation requires a substance to be burnt whereas E-cigarettes, personal vaporizers and electronic nicotine delivery systems are battery operated devices that produce a vapour and are used as a substitute for real cigarettes.
Often e-cigarettes are used as an aid to stopping smoking and this may be something an employer wants to encourage but alternatively the effect on other employees has to be considered as the long term effects of exposure to the vapour are not known and continued exposure could create an unpleasant working environment.
Other factors that should be considered include the impression on other employees and customers of allowing the smoking of e-cigarettes at work. Many of these devices look very similar to real cigarettes and can lead to people thinking that the cigarette is real. Other employees may also try to argue that by allowing e-cigarettes real cigarettes should be allowed as well.
It is important that smoking policies are updated to include rules about the use of e-cigarettes. A recent case brought before an Employment Tribunal has highlighted the risk of not having a clear policy in place. In the case a claim for constructive dismissal was made after an employee resigned having been seen smoking an e-cigarette in full view of pupils at the school where she worked. By resigning before a disciplinary hearing had been arranged the case for constructive dismissal was not upheld with the tribunal ruling that the employer had acted properly.
However the tribunal stressed that as the employee had resigned they were unable to rule on whether this would have been a case of gross misconduct thereby justifying dismissal. They observed that the Company smoking policy would have been relevant and that this did not cover the use of E-cigarettes. It could therefore have been argued that any dismissal would have been unfair as the use of e-cigarettes was not expressly prohibited.