The popularity of electronic or e-cigarettes has been increasing each year with the number of users worldwide already exceeded twelve million.  The vaporised nicotine that users inhale vanishes within seconds and increasing numbers of celebrities such as Simon Cowell and Kate Moss have been spotted as e-cigarette users.

But what is the legal position at work with this seemingly smoke-free cigarette? This guide sets the record straight.

1.             Can employees use e-cigarettes indoors at work?

From 1 July 2007 smoking in work premises in England became unlawful for all substances that could be burnt.  Since e-cigarettes give off a vaporised water-based mist, they do not fall within the smoking ban and can be used indoors.

2.             What can we do if we receive complaints from colleagues about e-cigarettes?

There is nothing to stop you from implementing a policy which prevents the use of e-cigarettes in the workplace.  Such a policy should apply to all staff and stipulate where smoking is permitted, if appropriate.

3.             What can we do if the e-smokers complain that they are surrounded by tobacco smokers?

You are not legally required to provide a smoking area for smokers.  A possible solution may be to apply a blanket ban on all smoking on your premises or to designate a separate area for e-smokers which is situated away from the tobacco smokers.

4.             What can we do if I there is concern over the amount of time being lost to smoking breaks?

There is no legal obligation to allow smoking breaks.  Therefore, you may want to stipulate the number/ length of smoking breaks that are permitted each day or allow employees the flexibility to make up any time which is lost.

5.             Can an employee be dismissed for smoking e-cigarettes at work?

If e-smoking is expressly prohibited at your premises and you follow a fair procedure, it may be treated as gross misconduct, depending on the individual circumstances of the case.  In this situation, it’s advisable to speak to an HR professional before taking any formal action.

Since e-cigarettes are a relatively new innovation, there is surprisingly little employment-related case law but their popularity has nevertheless prompted a government debate, which may lead to additional regulation in the future.

For more information about employment and HR law, contact Ramshaw HR

By Bruce Ramshaw

Principal Consultant