HOW DO I HANDLE IT?

Tughans LLP on employment law and difficult workplace scenarios.

For October 2024, we have asked the employment team at Tughans LLP to provide practical answers to unusual, sensitive or complex work-related queries. We call this feature “How do I handle it?”

The articles are aimed at HR professionals and other managers who may need to deal, from time to time, with the less commonplace disputes at work; issues that may, if handled incorrectly, lead to claims for discrimination, constructive dismissal or some other serious difficulty.

This month’s problem concerns:

“We have been made aware that an employee is vaping at their workstation while on video calls with clients. We are concerned about how this could make the business look, as well as the potential that other employees may start doing the same. How do I handle it?”   

The use of e-cigarettes, also known as “vaping”, has become increasingly popular in recent years with many moving away from smoking cigarettes. As with all things new, there is ongoing debate around the health implications of vaping, with the long-term health effects remaining unclear. The legal position is also unclear - smoking in enclosed public places and workplaces in Northern Ireland was outlawed in 2007, however, the use of e-cigarettes is not captured by the “smokefree” legislation as they do not emit smoke or burn tobacco.

In short, the use of e-cigarettes in public places, including the workplace, is not illegal, however, that is not to say that you cannot prohibit employees from vaping at work. Whether you decide to permit or prohibit the use of electronic cigarettes on your premises is ultimately a matter for the Company, although there are several factors you should consider.   

Arguably one of the main factors is the nature of your business. If the employee works in a large open plan office or warehouse, vaping is less likely to be problematic, as opposed to vaping in a school or hospital. You should consider the affect, if any, allowing or preventing this employee from vaping at their workstation will have on your wider workforce and business. You will be aware an employer has a duty to safeguard the health and safety of your employees, as well as those who visit your Company’s premises. E-cigarettes contain toxic chemicals and it is possible that vaping around vulnerable individuals, such as pregnant employees, or those with asthma or other serious respiratory issues could be detrimental to their health.

Before you decide how you would like to handle the matter, it would be useful to speak to the employee and find out why they vape at their desk, during working hours. It may be that they are reliant on the vape to help them overcome a smoking addiction and prohibiting them from vaping on the Company’s premises could have a substantially negative effect on their efforts to quit smoking and by extension their health and wellbeing.

After speaking to the employee, you may wish to suggest alternative methods of support for them or encourage them to vape away from their desk and outside the premises. If, however, you decide to prohibit vaping, as a starting point, you should check if your anti-smoking policy or health and safety policy refers to the use of e-cigarettes on the business premises and during working hours.

If your policy is silent on the use of e-cigarettes, you may wish to review and update your policy wording to clarify the position to employees, as it is likely this could become a recurring issue. You should ensure that any new or revised policy is clearly communicated and understood by employees. It may also be useful to install appropriate signage, highlighting that employees are not permitted to smoke or vape on the Company’s premises.

If you have already prohibited vaping in your policies, you should remind employees of this if you have a zero-tolerance policy. If this employee persists with the same course of action after this notification, you could have grounds to discipline the employee for use of an e-cigarette at work and breach of the applicable policy. If you do proceed with this course of action, you must ensure that you carry out a fair disciplinary process.

It may be that there are several employees that use e-cigarettes and a solution could be to introduce a designated area where employees can take their rest breaks and vape freely if they wish. You should monitor vaping breaks to ensure that employees are not taking excessive breaks.

In summary, it is for the Company to decide whether they exercise their discretion in allowing or banning employees from vaping at work. There is no ‘one size fits all’ solution and you should ensure that your approach and policies are in line with your business needs.

Legal Island Training Resources for Your Staff

Employee Wellbeing Toolkit | eLearning Course

Are you responsible for overseeing and managing the wellbeing of all employees in your organisation?
Good mental health and wellbeing practices in the workplace are essential for us all. With an estimated 70 million workdays lost each year to poor mental health, good practices can provide not only a productive but a safe workplace for everyone.
Legal Island’s Employee Wellbeing eLearning Toolkit provides comprehensive training for all staff, ensuring every employee is aware of the importance of mental health and wellbeing in the workplace. The toolkit is designed to enable all-staff training for organisations, with 8 key mental health and well-being topic areas to choose from.

Click here to view this course employee wellbeing toolkit.