Vaping in the Workplace - A Burning Issue

We know that smoking cigarettes in enclosed or substantially enclosed public places and workplaces in England has been prohibited since 1 July 2007 under section 7 of the Health Act 2006 and associated regulations.  However, e-cigarettes are not currently caught under this legislation and so this is largely a matter for employers to decide what best suits their particular workplace.

Public Health England (PHE) has recently published guidance on creating policies for use of e-cigarettes, also known as ‘vaping’.  As there are now thought to be as many as 2.8 million e-cigarette users in the UK, it is sensible to have a policy in place that addresses this issue.

The aim of the new framework published by PHE is to help organisations manage the use of e-cigarettes that will support smokers to quit and stay smoke free, but also to manage any risks associated with the use of e-cigarettes, particularly in the wider workplace and those employees who do not use e-cigarettes.

In the guidance, PHE recognises that different types of workplace will have differing needs and approaches; a school setting for example is likely to require different rules compared to other workplaces, such as a factory of office environment.  In addition however, employers will need to consider wider duties towards other employees who neither want to inhale the smoke from a cigarette, or the vapers from an e-cigarette.

The guidance recently published by PHE sets out 5 key principles for employers to consider when creating a policy dealing with vaping in the workplace.  The 5 principles established are:

1. Employers should make clear distinction between vaping and smoking in any policy.
2. Employers should ensure that policies that are introduced are fully informed and take into account the evidence on health risks to bystanders.
3. A policy should identify and take steps to manage the risks of uptake by children and young people.
4. A policy should be designed to support smokers to stop smoking and stay smoke-free.
5. Employer’s policies should support compliance with smoke-free law and policies.

Professor Kevin Fenton, National Director of health and wellbeing at PHE said:

The evidence is clear that vaping is much less harmful than smoking and that e-cigarettes are helping many smokers to quit.

This new framework will encourage organisations to consider both the benefits and the risks when developing their own policies on e-cigarettes.

George Butterworth, Cancer Research UK’s tobacco policy manager, said:

E-cigarettes are still a relatively new product, so it’s understandable that many people and businesses may not know how to deal with them. The evidence so far shows e-cigarettes are much safer than tobacco and they have the potential to help people give up a deadly addiction. It’s important the benefit of using them are maximised while reducing any negative impact, and organisations need independent advice from Public Health England to set out their own policies.

Despite the guidance and increased use of e-cigarettes, many employers are concerned about permitting the use of e-cigarettes in the workplace for various reasons and may take the view that they prefer to extend the smoking ban to include e-cigarettes also.  Some employers are concerned about the risk of claims from ‘passive vaping’ given the relatively unknown health implications of this.  Other employers consider that allowing employees to vape in the workplace sets the wrong tone or does not convey a professional image, and may therefore prefer to require e-cigarette users to go to a designated smoking area, just as regular smokers do.

We have very little case law to consider in relation to vaping.  In one rare case that did consider the issue (Insley v Accent Catering), the employment tribunal commented that a dismissal for using e-cigarettes was likely to be unfair as it was not clear whether the use of e-cigarettes was expressly covered in either the employer’s smoking policy.  This would seem to confirm the widespread understanding that employers are entitled to prohibit vaping in the workplace, but they should have an appropriate and clear policy in place that sets out their position on the issue.

In a case decided before the introduction of Health Act 2006, it was held by the EAT to be an implied term of every contract of employment that the employer will provide a working environment which is suitable for the performance of contractual duties. Under section 2(2)(e) of the Health and Safety at Work Act 1974 employers are obliged to provide and maintain a working environment that is reasonably safe and without risk to health and is adequate as regards facilities and arrangements for their welfare at work. This is likely to imply a right for an employee not to be required to sit in a smoke-filled (or vapour filled) atmosphere whilst at work and so employers should consider their position carefully before deciding on their particular approach to this issue.