12th September 2017

Clearing the Air on Smoking Policies

Since 2006, there has been legislation in Scotland which has prohibited smoking in public places.  This encompasses a wide variety of premises from bars and restaurants to public transportation vehicles.  The legislation also includes offices, factories and any non-domestic premises in which one or more people work.  Many employers will also have a separate no-smoking policy in place and it is recommended best practice to get employees to sign a copy of it.  This will ensure that, in the event of any breach of the policy, the employer can evidence that the employee has been issued with the policy, and they are aware of its content.

What about e-cigarettes?

The increased use of e-cigarettes in recent years has clouded the understanding of the law in this area.  As it stands, the current no-smoking legislation does not include e-cigarettes.  What is more of a hazy issue is whether a work place’s no smoking policy will also apply to e-cigarettes.  In the case of Insley v Accent Catering, the employment tribunal addressed the issue of the use of e-cigarettes, which has hopefully cleared the air a little in this area.  An employee was seen smoking an e-cigarette on work premises, which the employer considered to be in breach of their smoking policy, and a gross misconduct offence.  Incidentally, the employee resigned before the disciplinary hearing and subsequently claimed constructive dismissal, which was dismissed by the tribunal.  The important point in this case was the tribunal’s acknowledgement that the use of e-cigarettes was a point of concern.  The employer did have a no-smoking policy in place, which it considered to also apply to e-cigarettes.  However, the tribunal said the conventional no-smoking policy did not include e-cigarettes and the employee had not actually breached any rule by smoking one.

What does this mean for employers?

This means that employers will not be able to rely on the current legislation to prevent the use of e-cigarettes in the workplace.  The case above also suggests that they may not be able to fall back on any conventional no-smoking policy that may be in place.  If employers do wish to ban the use of e-cigarettes, any no-smoking policy should make specific reference to e-cigarettes.  Dismissal is far more likely to be fair when an employer can point to a breach of a specific rule.  Each case will turn on its own facts and merits but having a clear policy in place will certainly strengthen an employers’ position when dismissal is being considered.


Richard Wilson
Trainee Solicitor



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