Is Your Smoking Policy Up to Date?

A recent Employment Tribunal (ET) case (Insley v Accent Catering) is a reminder of the importance of keeping workplace policies and procedures abreast of current innovations as well as developments in the law.



The ban on smoking in pubs, restaurants and workplaces, which was introduced in 2007, does not cover e-cigarettes, which work by vaporising ‘e-liquid’ rather than by burning tobacco. Ms Insley, a contract catering assistant at a secondary school, was the subject of a complaint by the head teacher to her employer that she had been smoking an e-cigarette in full view of pupils at the school.



Ms Insley resigned before a disciplinary hearing to decide whether her conduct was serious enough to warrant her dismissal. She brought a claim of constructive dismissal.



The ET dismissed her claim as she had resigned before any decision as to the seriousness of her conduct had been taken.



In reaching its decision, the ET commented that had Ms Insley been dismissed, the school’s smoking policy would have been an important factor in deciding whether or not the decision to dismiss her was reasonable in the circumstances. The policy banned smoking on the school premises but did not expressly prohibit the use of e-cigarettes.