Insley v Accent Catering: is it fair to dismiss an employee for vaping on an e-cigarette?

Insley v Accent Catering: is it fair to dismiss an employee for vaping on an e-cigarette?

The first UK vaping tribunal decision highlights how important it is for employers to include e-cigarettes in their smoking policy.

The background

Ms Insley was a catering assistant working in a school. The headteacher complained to her employer, Accent Catering, that he had seen her using an e-cigarette at the beginning of the school day in full view of the pupils.

Ms Insley was asked to attend a disciplinary hearing to decide whether her actions were serious enough to justify dismissal. Ms Insley resigned before the disciplinary hearing and issued a claim for constructive dismissal.

The decision

The Employment Tribunal dismissed Ms Insley’s claim. It argued her employer had acted reasonably when asking her to attend a disciplinary hearing.

The Tribunal was unable to decide whether Ms Insley’s actions constituted gross misconduct given her resignation. But it indicated the school’s smoking policy would’ve been relevant to an unfair dismissal claim.

The school’s smoking policy prohibited smoking on school premises, but did not prohibit the use of e-cigarettes. So if Ms Insley had been dismissed, she could’ve argued it was unfair to dismiss her. Because using an e-cigarette was not expressly prohibited on school premises.

What this means for you

Employers are not going to be able to rely on legislation or policies that prohibit smoking to control the use of e-cigarettes in the workplace.

You need to be aware of this, and review and amend existing policies or create one specifically on e-cigarettes.

Need advice? We can help you

Please call Ted Flanagan today on 01482 324252.

Or email eff@gosschalks.co.uk.

Click here to find out more about our Employment Law services.

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