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Since 1 July 2007, under the Health Act 2006, smoking in enclosed or substantially enclosed public places and workplaces in England has been prohibited.
The ban on smoking applies to all substances which a person can smoke, including manufactured cigarettes, hand-rolled cigarettes, pipes, cigars, herbal cigarettes and water pipes (including shisha, hookah and hubble-bubble pipes).
Electronic cigarettes, more commonly called "e-cigarettes," are a type of electronic nicotine delivery system. They do not contain tobacco or any other combustible material and are not lit and ‘smoked'. The vapour produced by an electronic cigarette is mainly water vapour. It is highly unlikely, therefore, that they fall within the definition of ‘smoking' contained in the Health Act.
The BMA is however concerned at the lack of regulation governing the production and use of e-cigarettes and believes the existing smoke free legislation in place in the UK should be extended to include vapour from e-cigarettes. As an interim measure, the BMA has also announced that it encourages employers to implement organisation-wide policies prohibiting the use of e-cigarettes in their workplaces.
Transport For London staff have just been banned from using electronic cigarettes at work because they are too realistic, and customers may also be forbidden to "smoke" them in future.
So how should an employer manage the implementation of a ban on e-cigarettes in the workplace? This could be in the form of a works rule prohibiting use of e-cigarettes in the workplace, but where should an employee be permitted to ‘smoke' an e-cigarette if other employees have a specific area in which they are permitted to smoke? It would not be appropriate to insist that the e-cigarette smoker smokes in the smoking area as this would in itself be unreasonable, and probably contrary to the provisions of the Health Act. It may be necessary to allocate an additional area for those who wish to smoke an e-cigarette in their break.
It is of course not necessary to permit any ‘smoking breaks' in excess of the permitted breaks under an employee's contract or the statutory 20 minute breaks every 6 hours worked under the Working Time Regulations 1988.
Pam Loch, Managing Partner of niche employment law practice, Loch Associates Employment Lawyers and Managing Director of HR Advise Me Limited.
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