Wednesday March 12 is No Smoking Day, when those who are still ardent tobacco users are nudged towards the various routes that can lead them to healthier lungs, fresher breath and a rosier bank balance.

But what should employers do when staff who are trying to quit decide to swap the filter tip for an e-cigarette instead?

Should they allow them to use e-cigarettes at their desks, or in the canteen? After all, e-cigarettes, which are battery-operated devices that emit doses of vaporized nicotine, don’t give off smoke.

The law around not smoking cigarettes in public places – including workplaces – is perfectly clear. Smoking conventional cigarettes, pipes and cigars is not allowed in any enclosed workplace, public building or on public transport. It’s as simple as that.

But the position around e-cigarettes isn’t quite as straightforward. So if one of your employees wants to use one, where do you stand?

Malcolm Gregory, employment partner with Withy King, says that dealing with e-cigarettes in the workplace should be quite simple.

“If your company already has a policy dealing with smoking at work – for instance, allowing smoke breaks outside at certain times – then I would say there’s no problem with extending the policy to e-cigarettes,” he said.

“Employees don’t have a legal right to use an e-cigarette in the office or workplace if their employer doesn’t wish to allow it. The effects of the device is still medically uncertain, and it is possible that the e-cigarette could impact on other employees in some way. As an employer, you would be acting perfectly reasonably to simply ban their use, in the same way you could ban the use of Facebook or mobile phones during working hours.”

He warns that any employer wanting to appear flexible by allowing e-cigarettes in the workplace could actually end up inadvertently exposing their employees to as yet unknown risks.

The British Medical Association has already called for stronger controls on where e-cigarettes can be used. It wants to protect those nearby from being exposed to the vapours, which contain propylene glycol, glycerine, flavouring substances and nicotine – albeit in lower concentrations than tobacco smoke – that can be inhaled passively.

The BMA also points out that because these devices commonly resemble tobacco cigarettes, in terms of appearance and the way they are used, as well as features that are potentially attractive to children, they may help undo much of the work that has been done to educate the public on the dangers of cigarette-smoking, and start to make the habit socially acceptable and attractive again.

Malcolm agrees. “The industrial relations point here is it also sends the wrong message to staff, who are likely to see this as a nod towards the acceptability of smoking more generally, which is of couse unhealthy,” he says.

“If you allow staff to use e-cigarettes, then later on decide to remove their use, in itself it is unlikely to be a major legal issue. After all, your employee could hardly argue you were breaching their contract by removing permission – unless he or she argues that you have breached the implied contractual term of trust and confidence. But it would be a distraction for your company. So it’s probably just easier not to allow it from the start.

“I don’t think an employee will be able to argue that they should be able to use them in the workplace, even if they are badged as an aid to quit smoking.”

  • For help with quitting smoking, contact the Swindon Stop Smoking service on 0800 3892229 or 01793 465513, text 07881281797. Alternatively, email besmokefree@seqol.org or go to www.seqol .org/health/stop-smoking/Stop-Smoking.aspx