Employment

With 69% of Scottish smokers reportedly wanting to quit, alternative forms of getting a nicotine hit are growing in popularity. Celebrities including Kate Moss, Charlie Sheen and Leonardo Di Caprio have all been spotted with electronic cigarettes and now it has impacted on the employment law world here in Scotland.

We were recently asked whether the Scottish smoking ban prevented the use of E-cigarettes in the workplace and whether an employer should ban so-called “vaping” at work.

Whilst they look like traditional cigarettes, at least from a distance, manufacturers are quick to point out that e-cigarettes are, in fact, free from tobacco and many of the other dangerous chemicals present in cigarettes. They might look like cigarettes and even produce a cloud of vapour, but they are not lit and so fall outside the remit of the smoking ban. Legally, this means that unless there are specific local rules or workplace policies in place, people can switch on their battery powered nicotine vapourisers inside.

For those who like the detail, the law is contained in s4 (1) Smoking, Health and Social Care (Scotland) Act 2005 which says that .

“a person is to be taken as smoking if the person is holding or otherwise in possession or control of lit tobacco, of any lit substance or mixture which includes tobacco or of any other lit substance or mixture which is in a form or in a receptacle in which it can be smoked.”

Ultimately therefore it is up to individual employers whether to allow employees to vape at their desks. There are clear benefits to avoiding the traditional trek to the outside smoking area but there are some experts calling for more research into the effects of the vapour cloud on human health. Until we have conclusive scientific evidence that e-cigarette vapour is safe for those who may be particularly at risk (such as pregnant women and those who suffer from breathing difficulties) employers may prefer to treat those who “vape” in the same way as more traditional smokers and ask them to step outside for their hit.

Tony Hadden

Head of Employment & Partner at Brodies LLP
Tony is head of employment and a partner at Brodies. He enjoys resolving employment related disputes and has over 15 years’ experience of representing clients in employment disputes both before employment tribunals throughout the UK and in pre-litigation settlement discussions.
Tony Hadden