Case law: First legal ruling on e-cigarettes at work highlights importance of e-cigarette policy
Wednesday 4th March 2015
Employers should ensure they have a policy covering use of e-cigarettes by their workforce, both on and off work premises, following a recent legal ruling.
An employee working as a school catering assistant resigned after being summoned to a disciplinary hearing for bringing the school into disrepute. Her offending conduct was smoking an e-cigarette (known as 'vaping') at school 'in full view of the students'. The school had a smoking policy which prohibited smoking on school premises, but made no mention of e-cigarettes. She claimed constructive dismissal.
There is a constructive dismissal when an employer has done something that is so fundamentally inconsistent with the employer/employee relationship – a 'repudiatory breach' - that the employee is entitled to treat him or herself as dismissed.
The legal test of whether there has been a repudiatory breach is whether, from the perspective of a reasonable person in the position of the innocent party, looking at all the circumstances, the contract breaker has shown a clear intention to abandon and altogether refuse to perform, the contract.
The Employment judge ruled that the employer's actions did not amount to constructive dismissal. However, significantly he said that had the employee not resigned before the disciplinary hearing and her employer had dismissed her, her subsequent dismissal might well have been unfair because, among other reasons, the school's policy on smoking did not cover e-cigarettes. It therefore seems that policies – and by implication, existing law - regulating smoking in the workplace do not cover the use of e-cigarettes.
Acas has issued free guidance on the use of e-cigarettes in the workplace which employers will find helpful.
Ensure they have a policy covering use of e-cigarettes by their workforce, both on and off work premises.
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