In March of last year we looked at the issue of electronic cigarettes (e-cigarettes) in the workplace and some pending cases in the UK. The Employment Tribunal in the UK recently issued a decision arising from a claim by an employee for constructive dismissal resulting from the use of electronic cigarettes.

The employee in this case, a school catering assistant, was suspended for alleged gross misconduct pending a disciplinary hearing to examine her use of e-cigarettes in front of pupils. The employee resigned in response to this as she felt she was being victimised and issued a claim against her employer. The UK Employment Tribunal dismissed the employee’s claim finding that there had been no breach of the employee’s contract in inviting her to attend a disciplinary hearing.

Although the Tribunal dismissed the employee’s claim, it went on to make some interesting remarks noting that the employee’s actions did not amount to gross misconduct in line with the respondent’s smoking policy as it did not expressly ban the use of e-cigarettes. This was a result of the policy being based on the UK’s Health Act 2006 which only covers tobacco products. Similarly Irish legislation which prohibits smoking in the workplace only prohibits tobacco products; e-cigarettes would accordingly not be covered.

This means that had the employee in the above case been dismissed, that dismissal may have been deemed unfair since the employee would technically not have breached the employer’s smoking policy.

This case highlights the need for employers to revise their employee handbook to include a policy in relation to e-cigarettes and to clearly communicate that policy to all employees.

Contributed by Catherine O’Flynn.

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