This was highlighted in the recent vaping case in the Employment Tribunal, Insley v Accent Catering. Mrs Insley was employed as a Catering Assistant at a school by Accent Catering. The head teacher of the school complained to Accent that Mrs Insley had been seen smoking an E-cigarette in front of pupils. Disciplinary proceedings were started but before the conclusion of the disciplinary process Mrs Insley resigned. She brought a claim for constructive dismissal.

Her claim for constructive dismissal failed as the Tribunal found her employer had acted reasonably and properly. At the end of the judgment however the Judge commented that it was not clear, if this had been a gross misconduct dismissal case, whether smoking an e-cigarette actually amounted to a breach of the no smoking policy as that policy did not specifically refer to e-cigarettes.

Therefore employers should be aware that smoking and vaping are not technically the same. It may not be enough to rely on existing no smoking policies and therefore policies should be updated to make it clear that vaping is also prohibited.