E-cigarettes are not subject to the ban on smoking in the workplace introduced in Scotland in 2006 which only applies to lit substances, not the battery operated e-cigarettes. If you are an employer, it is worth avoiding the risk of issues, such as future injury claims, and reviewing your policy to include e-cigarettes within the ban.

Employers reviewing their approach to e-cigarettes should:

Be clear on the reason for extending the smoking ban to e-cigarettes. For some employers, such as those who deal with the public, children or young adults, a ban may be appropriate. There remain queries over the safety of second hand vapour – it will contain traces of nicotine and other substances, so pregnant women or those with health problems may have understandable concerns over their use in confined spaces.

If you have an existing smoking policy, review it, and if appropriate, extend it to e-cigarettes. It is vital for staff to be aware of the extended ban, when it starts, and sanctions for breach. In the only case so far on ‘vaping’, the Employment Tribunal was clear that in deciding whether a gross misconduct dismissal would have been justified, the terms of any no smoking/’vaping’ policy would have been relevant.

There is no obligation to designate specific outside areas for smokers, but if you do, designate a separate space for ‘vapers’ so they are not exposed to cigarette smoke.

Have a clear approach to breaks, whether for smoking ordinary or e-cigarettes. Time off for what ACAS calls ‘al fresco fags’ can cause problems. If staff are spending too much time away from their desks, adopt a clear policy for smokers and ‘vapers’ and be clear on what the consequences of breach will be.

Address the issue of charging e-cigarettes at work. Charging these devices is not necessarily more risky than staff charging any other personal devices, but a consistent approach should be taken.

Consider providing advice and support to staff who are trying to give up smoking, for example information leaflets or permitting controlled ‘vaping’.

Where staff attend external premises or drive company vehicles make sure they are aware of your rules on using e-cigarettes during working time, and of the consequences of breaching them.

If you would like advice on this issue, please contact a member of our Employment team.