E-cigarettes in the Workplace

E-cigarettes in the Workplace

Electronic cigarettes (“e-cigarettes”) have recently become a popular alternative to tobacco based cigarettes.
From 2016 e-cigarettes are to be licensed as a medicine in the UK. This news seems to be a response to general public concern about the lack of regulation surrounding them.
E-cigarettes work by vaporising a nicotine solution in order to replicate smoking without the use of tobacco. However unlike tobacco-based products they are not covered by the Health Act 2006 which prohibits conventional smoking from the workplace.
It has therefore been left up to the discretion of employers to decide on an appropriate policy for their use in the workplace.
It is clearly in the interests of employers to promote health and wellbeing in the workplace as healthy happy and well-motivated employees are less likely to be affected by stress and absence and more likely to contribute positively to the performance and productivity of an organisation.
This setting brings me to consider a recent story of an employee who was dismissed for smoking an e-cigarette at work.
Paul Scott 55 was an employee of Viridor who run a waste facility at a landfill site in the London Borough of Sutton for seven years before his dismissal. Mr Scott was spotted smoking an e-cigarette on site by his manager and was accused of having breached regulations.
Mr Scott through his union UNITE has accused his employer of dismissing him unfairly and in support of their colleague some of the remaining workers have threatened to go on strike.
He had been smoking an e-cigarette as he was trying to give up smoking and he did not believe that he was acting against company policy. Nevertheless Mr Scott was told during his disciplinary hearing that smoking an e-cigarette was not allowed as it was part of a new company policy. So new in fact that it had not yet been communicated to anybody.
Viridor has stated that a thorough investigation was carried out and Mr Scott was found to have breached the company policy which resulted in his dismissal.
Review
If Mr Scott was dismissed for smoking an e-cigarette when he and his colleagues were not aware of any policy prohibiting this practice and in the absence of any prior disciplinary history then on the face of it the dismissal seems to be unfair.
If anything a reasonable employer in the same position could give an employee a warning and threaten further disciplinary action in the case of future misconduct.
On the other hand if Mr Scott was mistakenly accused of smoking a real cigarette at work when in fact he was smoking an e-cigarette then the investigation was clearly not thorough enough to determine exactly what happened in this situation.
We do not have all of the facts in this case so it would be difficult to comment further. However from the information we do have it appears that Viridor did not have a fair reason to dismiss Mr Scott and even if they did they would struggle to argue that the dismissal was reasonable in the circumstances as the investigation appears to have been flawed and this could not be described as reasonable response from the employer.
Conclusion
The situation regarding the treatment of e-cigarettes is still unclear. Indeed some experts have questioned the safety of the chemicals used in e-cigarettes and the British Medical Association (BMA) says that more research is needed to establish the effectiveness and perhaps more importantly safety of the devices as a nicotine-replacement therapy for both the users themselves and the non-smoking public.
I agree that given the lack of regulation in this area employers should be allowed to determine for themselves whether e-cigarettes can be used in the workplace. However I would encourage further investigation into the safety of these devices so that those surrounding users of e-cigarettes know if what they are breathing is affecting their health.
Furthermore the effect of allowing e-cigarettes in the workplace and the advertising used to promote them seems to have encouraged children in my local area to believe it is reasonable to use e-cigarettes while walking around school. However this is a point for further discussion.
If you have been dismissed by your employer or you have been subjected to disciplinary action as a result of using e-cigarettes or for any other reason and you are looking for a solicitor in Leeds who specialises in this area please contact the dedicated employment team at Michael Lewin Solicitors who will be happy to discuss your situation with you.
Written by
Anthony Fox

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