Now that electronic cigarettes are drawing widespread attention and growing in popularity worldwide, employers are struggling to determine how to handle vaping in the workplace. Even those that prefer a vape-free environment are often at a loss for how to enforce the new policy because vaping can be difficult to detect if the smoker is careful and covert. Recently, we saw the first employment tribunal related to e-cigarettes in history and the ruling surprised many and left some employers worried.
The tribunal featured Insley vs. Accent Catering. Insley was an employee of Accent Catering and worked to provide food services in a high school. One of the teachers complained that Insley was smoking an ecig on campus and in view of students. After the school complained, Insley faced a disciplinary hearing and she resigned before the hearing ever took place.
Despite the fact that the employee had already resigned, the tribunal still met to determine whether the employer was within its rights by calling Insley in for a disciplinary hearing due to vaping. Ultimately, the tribunal found that there had been no breaches by Accent Catering, but they did emphasize that the company’s view of e-cigarettes as equivalent to tobacco use was not okay. Insley had not actually breached any policies by vaping because there was no recorded rule that prohibited ecigs in the workplace.
This case brings a worrisome warning to other employers that they better perform due diligence before firing employees for vaping. They would probably not be justified in court if they are relying on an anti-smoking policy as the reason for termination because the tribunal felt that vaping and smoking were two entirely different acts. The tribunal emphasized that companies need to develop clear policies regarding electronic cigarettes and where they are prohibited. These rules must be clearly communicated to all employees or otherwise workers cannot face disciplinary action for vaping.
This seems like a common sense approach, but it’s surprising how many employers assume that workers know vaping is frowned on simply because they equate ecigs with tobacco use. How does your workplace handle this issue? Is there a written rule that prohibits vaping or is simply an unspoken rule that everyone understands?