Smoke without fire - E-cigarettes and the workforce

Employees iStock 000005305116XSmall 146x219What approach should public sector employers take towards the use by staff of e-cigarettes? Sarah Lamont looks at the key issues and the available options.

You may have noticed that electronic cigarettes or 'e-cigarettes' are now making a regular appearance in shops, and a few specialist 'e-cigarette' outlets have started popping up. This reflects the fact that the 'e-cigarette' business is booming: it is reported that over a million people are using them in the UK and anecdotal evidence suggests that employees are starting to use them in workplace - arguing that they are not 'cigarettes' and therefore should be allowed.

What are e-cigarettes?

An 'e-cigarette' is a means of delivering nicotine by way of a vapour that is free of the damaging chemicals in cigarette smoke, such as tar. The health effects are thought to be minimal, as nicotine is currently considered a relatively harmless drug, somewhat akin to caffeine. The nicotine is inhaled by a mist, which resembles smoke. The fact that it is a vapour that is inhaled instead of smoke, has resulted in the use of e-cigarettes becoming known as 'vaping'.

The legal framework

At present, there is no specific regulation of e-cigarettes; they are only regulated as normal consumer goods - for example, the battery must meet safety standards. However, the government intends to restrict their sale to children and it is expected that, by 2016, e-cigarettes will be regulated as form of 'medicine', similarly to nicotine gum and patches.

A proposal for a blanket ban on the sale of e-cigarettes across the EU has been rejected by MEPs, but limits will be placed on the amount of nicotine they contain, and individual EU member states will be able to introduce a national ban if they see fit.

As e-cigarettes vaporise a mist and do not contain a combustible material that is 'lit' or smoked, they almost certainly do not fall within the ambit of the smoking ban which was introduced in 2007 under the Health Act 2006. The British Medical Association has, however, called for the smoking ban to encompass e-cigarettes.

Acas has produced a short guidance note called 'How should employers deal with e-cigarettes in the workplace?' The guidance has no statutory effect but suggests, in summary, that:

  • employers may be reluctant to allow e-cigarettes into the workplace; and
  • employers should consider the impact that 'vaping' has on the rest of the workforce, especially those who are pregnant or trying to give up smoking.

The guidance does not, however, indicate how employers should tackle these issues.

Issues to consider

Should e-cigarettes be treated in the same way as conventional cigarettes?

It may be that some local government employers would take the view that e-cigarettes are relatively harmless and, therefore, an e-cigarette break should be treated like a 'caffeine break' and allowed in the workplace. However, it may be that you would want to draw a distinction between different classes of employee using e-cigarettes, given that local authorities will have some employees in 'client facing' roles and others who will would be able to 'vape' in the privacy of an office. That said, local authorities may be concerned about the following points:

  • Projecting the right image. As indicated above, this will be a particular concern where employees are in a public facing role, especially in health, education and social care. The decision on an approach would be down to individual employers, but it seems very likely that most would consider that it is inappropriate for an employee to be 'vaping' whilst, for example, teaching a class of children or attending to an elderly person in their home.
  • Promoting a healthy lifestyle. Whilst it is thought that e-cigarettes may be relatively safe from a health perspective, some may be concerned that it glamorises or normalises something that looks like smoking. This may be a particular concern given local authorities' new public health responsibilities.
  • Health and safety issues. Aside from the question of potential health issues around perpetuating / encouraging nicotine addiction, employers may be concerned about the impact on safety at work. For example, it would be unsafe for employees who drive in the course of their employment to hold an e-cigarette while driving.
  • Resistance from the rest of the workforce. It has been reported that some workers have said that they would find it harder to give up smoking if they had to work with people using e-cigarettes. In addition, vapour from flavoured e-cigarettes may emit a smell which some may find off-putting.

Action to consider

Whether or not you decide to allow the use of e-cigarettes within your workforce, your starting point should be a well drafted policy, which is clearly communicated and implemented in consultation with employees.

Relevant policies are likely to be your anti-smoking policy (which it may be possible to amend to encompass e-cigarettes) and health and safety policies, but there may be others.

If you intend allow all employees, or some employees, to 'vape' at work, you will need to consider the following:

  • Will all employees be allowed to 'vape' or will you restrict this only to certain categories of employee?
  • Will 'vaping breaks' be required or will employees be allowed to use e-cigarettes while they work?
  • If employees are expected to 'vape' during breaks, will they have to make up time in lieu, or will employees be required to restrict 'vaping' to their normal break times?
  • If you want to restrict 'vaping' to certain areas, you may wish to keep this separate from smoking areas, in order to protect e-cigarette users from passive smoke. Also, many users of e-cigarettes are trying to stop smoking so would not want to be around smokers.
  • The strict rules on smoking in enclosed spaces, under the Health Act 2006, would not apply to 'vaping'. Therefore, if you decide to have dedicated 'vaping areas', you would have more flexibility about where these are located; they could be inside or outside, and could be in enclosed areas.

If you are going to impose a total ban on vaping, you will need to:

  • consider the scope of the ban – for example, will the ban extend to all your property including outside / near the entrance to your premises? This approach would reflect the recent NICE proposal that smoking should be banned on all NHS property;
  • consider what your approach will be to work-related social events. However, for social events which take place outside the workplace, this is likely to be dictated by the policy of the relevant venue;
  • consider whether breach of the policy will be dealt with as a disciplinary matter and, if it is, whether vaping at work will be treated as gross misconduct, justifying summary dismissal. This would have to be reflected in your written disciplinary policy.

However you decide to approach the use of e-cigarettes in the workplace, it would be advisable to put this into a written policy (preferably drafted in consultation) which is communicated clearly and consistently across the workforce. You may also need to notify any private sector providers to ensure that their policies and practices are consistent with your approach.

Sarah Lamont is a partner at Bevan Brittan. She can be contacted on 0870 194 8943 or This email address is being protected from spambots. You need JavaScript enabled to view it..