The employment tribunal in Insley v Accent Catering considered a claim by a school catering assistant that she had been constructively dismissed by her employer.

The tribunal around the use of e-cigarettes on school property highlights the need for employers to rapidly review their smoking at work policies.

Catering assistant Ms Insley was found smoking the device on school property in full view of pupils.

Ms Insley resigned just before a disciplinary hearing was arranged by her employer to decide if her actions were serious enough to justify dismissal. The tribunal dismissed her claim of constructive dismissal, holding that the employer had acted properly

Despite the dismissal of the claim the tribunal still raises serious concerns around e-cigarette policies. The schools smoking policy did not stipulate that e-cigarettes were prohibited. Therefore if they had attempted to dismiss Ms Insley on the grounds of gross misconduct they would have risked an unfair dismissal claim. 

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. Understandably, the use of e-cigarettes at work will be of particular concern to employers in the education sector. Employers should review their policies and make sure they set clear rules around e-smoking in the workplace”

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