E-Cigarettes: No smoke, but the potential for fire

According to a report in 2014 there are 2.1 million users of E-Cigarettes in the UK. With their meteoric rise in popularity comes aggressive debate about their safety and serious questions about their legal status.

Some studies suggest that they are comparatively safe and help smokers to quit tobacco, but other influential groups (notably the World Health Organisation) have suggested that the high levels of chemicals used to create different flavours may in fact lead to repository problems. In addition to this, many researchers are showing concern that the wide array of flavours available may be making E-Cigarettes more attractive to children and teenagers.

This ambiguity about their safety is reflected in the government and company policy to these devices. Currently, the E-Cigarette is not classed as a cigarette for the purpose of the smoking ban but a large number of organisations are banning the use of them inside their own facilities, notably on trains, airplanes and the BBC. The Welsh government has been in the news recently for banning the smoking of E-Cigarettes in all public places.

Recently this debate has emerged for the first time as a serious employment law issue. This year a teacher was smoking an E-Cigarette in front of children in a school that forbade smoking on the premises.  When he was called in for a disciplinary hearing the question was whether there was a valid case for dismissal? It is not disputed that there would have been had the teacher been smoking tobacco.

Unfortunately, the teacher left the meeting claiming constructive dismissal and so the question was never quite answered. The law remains unclear; E-Cigarettes are not classed as cigarettes for the purpose of the smoking ban and the government has shown no desire to change this, but it is not clear whether that definition would extend to company smoking policies.

Even if a definition is found, the situation for the teacher in this case remains uncertain. With ambiguity about their safety and fears that they are going to be used as a stepping stone for children to start smoking real cigarettes; the school may have been able to argue that the teacher was setting an extremely bad example whether violating the smoking rules or not. However, the teacher could also argue that he is showing smokers in the school that a safe alternative exists and that the school was hindering his effort to quit smoking. Both arguments have influential advocates.

For the time being the legal position remains as hazy as the political one when it comes to the status of E-Cigarettes. Companies would do well to follow legal and political developments closely and work hard to ensure that their smoking policy provides certainty in the case of E-Cigarettes, especially in respect of disciplinary action. It is also advisable for employees to double check their Companies’ policy before simply using an E-Cigarette in the work place.

Paul Kelly

Paul Kelly

Paul Kelly
Partner
Employment Team

0113 227 9249
Pkelly@LawBlacks.com
@PaulLawBlacks

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