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The ban on lighting up in the workplace: going up in (e-) smoke?

It has been unlawful to smoke tobacco products in the workplace since the implementation of the Health Act 2006 in July 2007 – but where does the law stand on e-cigarettes? 

On the face of it, there is no impediment to employees using e-cigarettes in the office given that, in using battery power to vaporise a nicotine solution and thereby replicating smoking without the use of tobacco or the production of smoke, they fall outside of the definition of tobacco products whose use is explicitly prohibited under the Act.  A number of other arguments have also been put forward in support of allowing their use – for instance, as a frequently-cited aid to giving up smoking, permitting the use of e-cigarettes could be seen as a supportive measure for affected employees; and such a move could reduce the need for employees to take smoking breaks away from their desks, thereby not only improving productivity but also fostering better employee relations by countering resentment from non-smoking employees who feel that they have no ‘entitlement’ to equivalent breaks.

Personally, I remain unconvinced, largely due to the unresolved health and safety concerns surrounding their use. Whilst there has been no conclusive opinion drawn by the medical profession on the safety of e-cigarettes, the signs are not encouraging: a 2008 review by the World Health Organisation was clear in its view that there has been no scientifically rigorous study which has satisfactorily shown that the e-cigarette is a safe and effective nicotine replacement therapy; while the British Medical Association has advocated a need for stronger controls on where e-cigarettes can be used (in order to protect others from being exposed to their vapours and to ensure that their use does not reinforce the "normalcy" of smoking behaviour), publicly stating its belief that the Health Act should be extended to include vapour from e-cigarettes. (The government appears to be at least partly in agreement, with e-cigarettes due to be licensed as a medicine in the UK from 2016).  There is also the argument that e-cigarettes not only create an unpleasant environment for non-smokers (or even employees who are trying to give up smoking without the use of e-cigarettes) but, crucially, could potentially constitute a passive consumption health risk for other employees at a time when the long-term health effects of e-cigarettes are unknown.

Therefore, there do appear to be objectively pretty strong grounds for employers to ban the use of e-cigarettes, at the very least as a precautionary measure until such time as the long-term impact of e-cigarettes has been determined. This is a position which is supported by ACAS in its guidance on the subject; and seems pretty robust from a legal perspective when you consider that there is no specific legal obligation requiring employers to allow their use.

If as an organisation you do decide to ban the use of e-cigarettes:

- Introduce a no-smoking policy (if you do not already have one) which clearly details your stance on smoking, both of traditional tobacco products and e-cigarettes/their equivalents.  Alternatively, amend any existing non-smoking policy as appropriate.  In either case, clearly state the potential penalties (most likely disciplinary action) in the event that the policy is not followed by employees.

- If you already provide a non-enclosed area for the smoking of traditional tobacco products, you should consider providing a separate non-enclosed area for employees to use e-cigarettes. A separate area is highly recommended given that users of e-cigarettes (who technically are not smoking) have a right to work in a smoke-free environment, and therefore should not be put in the same category – and therefore required to smoke in the same designated spaces – as smokers of traditional tobacco products.

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