Employers should review their smoking at work policies following the first tribunal case involving e-cigarettes, says law firm Irwin Mitchell.

In the case of Insley v Accent Catering, a school catering assistant who was seen using an e-cigarette on school premises in front of pupils was reported by the headteacher – as smoking was not allowed on the school property – but before a disciplinary hearing, the employee resigned claiming that she had been constructively dismissed by her employer.

Christopher Tutton, an employment partner at national law firm Irwin Mitchell said:

“This case raises some difficult issues for employers. E-cigarettes are considered to be less harmful than conventional tobacco cigarettes and are used by some to help them quit smoking. By banning their use in the workplace, employers could be seen as being unsupportive.

“However, the health effects of e-cigarettes and passive “e-smoking” are not fully understood, so permitting it in the workplace may create a health and safety issue. It is also likely to be contrary to the corporate image most employers wish to promote. Employers should review their policies and make sure they set clear rules around e-smoking in the workplace”

The claim was dismissed by the employment tribunal but it indicated that if the school had attempted to dismiss the catering assistant on the grounds of gross misconduct, they would have risked an unfair dismissal claim as their smoking policy did not stipulate that that use of e-cigarettes was prohibited.