What’s the Policy on Vaping at work?

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A constructive dismissal claim was recently heard by the Employment Tribunal in relation to an employee who had been witnessed using an electronic cigarette (vaping) in front of pupils at the school where she worked. The claimant was employed by a catering company and was invited to a disciplinary hearing, but resigned before the hearing took place. The case was not upheld, as the tribunal was not able to determine whether or not the action amounted to gross misconduct and therefore potential grounds for dismissal.

However, the tribunal indicated that in order to be able to take action against an employee for using an e-cigarette on its premises, the employer cannot rely on existing legislation or their own no smoking policies to invoke disciplinary procedures in such situations. It even went as far as saying that dismissal in such a case could be deemed unfair and any claim could be won on the basis that the existing policy did not refer to e-cigarettes and vaping specifically.

In the absence of legislation covering e-cigarettes, this case highlights the fact that smoking and vaping are seen as completely separate activities. It is therefore essential for employers to develop and communicate clear policies regarding the use of e-cigarettes in the workplace, particularly if an employee could face disciplinary action for vaping at work.

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