A recent UK employment tribunal case has sounded a warning that an employer wishing to dismiss an employee for vaping might not be able to fall back on its conventional smoking policy to justify the action taken, according to a piece on cipd.co.uk quoting Stuart Jones, head of employment and pensions at Weightmans.
The case in question did not concern a dismissal, but a constructive dismissal, and the tribunal found that the employer had ‘reasonable and proper cause’ for all of its actions.
However, the tribunal identified as a ‘point of concern’ that, while the employer clearly considered vaping to be the equivalent of smoking, it was not clear that the employee had breached any policy by using an electronic cigarette. She had not been informed of the specific rule she had broken because there was no rule in force prohibiting the use of electronic cigarettes. The only potentially relevant policy in place was a conventional no-smoking policy.
Jones commented that if an employer decided that a ban on electronic cigarettes was necessary and appropriate, it would need to consider amending any existing no-smoking policy to explicitly prohibit electronic cigarettes. And any policy would have to extend to third parties, such as visitors.
If an employer chose to restrict, rather than ban electronic cigarettes, a clear policy on usage was advisable. Employers would need to think also about how any changes would be communicated to employees. Avoiding misunderstanding around this relatively novel issue was crucial.
Dismissal in the absence of a designated policy or provision might potentially be fair, but was more likely to be fair where an employer could point to a breach of a specific rule. While all cases would turn on their own facts, a clear and consistently applied policy would certainly strengthen an employer’s position where dismissal was contemplated.