In recent years, electronic cigarettes or ‘e-cigarettes’ have increased hugely in popularity as an alternative to smoking or as a means of giving up smoking. E-cigarettes are to be licensed and regulated as an aid to quit smoking from 2016. Until this happens, e-cigarettes are only covered by general product safety legislation, meaning they can legally be promoted and sold to children and we cannot be sure of their ingredients or how much nicotine they contain. The MHRA (Medicines and Healthcare products Regulatory Agency) will not ban the products entirely during this interim period, but will encourage e-cigarette manufacturers to apply for a medicine licence.

According to the health charity ASH (Action on Smoking and Health), the popularity of e-cigarettes and “vaping” tripled over the two years to 2014 up to an estimated 2.1 million users. Because the devices fall outside the scope of the workplace smoking ban, it will be left to employers to decide whether to allow vaping at work.

Employers may be reluctant to permit vaping in the workplace for a number of reasons, including potential health concerns. Recent studies have suggested that vaping might not be completely harmless as the vapour may contain nicotine and other toxic particles. However, in the absence of concrete scientific evidence, vaping remains largely unregulated.

Some employers may consider that vaping creates an uncomfortable work environment for those who do not partake or that it may send out the wrong impression given its close association with the act of smoking itself. Conversely, others may encourage the use of e-cigarettes in the workplace with a view to supporting employees who are trying to give up conventional smoking.

Recent case law has emphasised that, regardless of whether a business decides to ban vaping or not, the important thing is that employees know where they stand.

The key then for employers will be to ensure their policies and procedures are up to date. Anti-smoking policies will need to clearly set out whether vaping is permitted, restricted or completely prohibited. If it is banned, will the organisation simply apply the same standards as for conventional smoking or take a more relaxed approach? Any policies will also need to be clear on the possible sanctions for breach.

Ultimately, it is a difficult position for employers as to whether to allow vaping in the workplace and they may be faced with complaints from employees either way. There is also a risk of grievances and potentially constructive unfair dismissal claims but employers can minimise the risk by having clear policies and procedures dealing with the issue.

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