E-cigarettes (also known as personal vaporizers or electronic nicotine delivery systems) are becoming increasingly more prominent in society.  Whilst met with odd looks only a few years ago, they are now widely accepted as “the norm” for those who are trying to give up smoking. The fundamental distinction between e-cigarettes and the traditional tobacco cigarette is that the former contains nicotine without the tobacco.  As it stands, e-cigarettes fall outside the scope of domestic smoking legislation – meaning that it is legal to smoke them inside.

Employers are often uncertain to what extent they can prevent their employees from smoking e-cigarettes in the workplace. The fact that it is legal to smoke e-cigarettes inside is often cited by employees as to why they should be allowed to use them at work.  In fact, it is useful to remember that just because e-cigarettes can legally be used inside, employers can lawfully prevent employees from using them in the workplace if they so choose to.

Employees are under a duty to obey the reasonable and lawful instructions of their employer. For example, if an employer wished to prohibit employees eating at their desks, for health and safety reasons or otherwise, an employee would be under a duty to abide by that instruction to the extent that it was reasonable and lawful. Failure to do so would be a breach of that duty, and could be treated as a disciplinary matter.

There is therefore nothing to stop employers (if they so wish) from preventing employees from using e-cigarettes in the workplace.   It is a reasonable management instruction that employees must obey.  If an employer has a concern that the vapour from the e-cigarette may irritate other employees or the employer’s clients, is unsure about the health implications of such use, takes the view that it looks unprofessional, or has any other sensible reason, it is absolutely justified in prohibiting use during working time.

Conversely, it may be that in an effort to help or encourage its workforce in stopping smoking tobacco cigarettes, the employer decides to allow the use of e-cigarettes at work.

Either way, it is important that an employer is clear about its rules on smoking e-cigarettes in the workplace.  We recommend that employers communicate their position on the issue to employees, and some may wish to put a policy in place to govern smoking at work (including the use of e-cigarettes).  It is important that employers set out the consequences of use of e-cigarettes at work (if that use is prohibited), which may well include disciplinary action for failure to follow instructions.

If you would like more information on any of the above, please contact a member of our Employmentor Team on 01603 281139.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.

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