e cig users told they have to use smoking shelter at work,

[ausfost]

morning all, my wife returned home from work after her night shift, the HR dept had left an email stating that all e-cig users would have to use the smoking shelter, i have got the ECCA guidance for her to take in and have cobbled together the following using info from all over the place:

Employers need to think about their common law and statutory duties to protect the health and safety of their employees. Given that the majority of E-Cigarette users have given up the use of traditional tobacco cigarettes, an employer requiring users of electronic cigarettes to use them in the same area as cigarette smokers is likely to be unreasonable especially as they would be exposing these employees to the harmfulness of passive smoking.

Given the essence of the Health Act 2006 and following on from the principle of employees being entitled to be provided with a smoke free workplace, to do so would seem to go against both legislation and case law. Section 1 of the Health Act 2006 defines "smoking" as "smoking tobacco or anything which contains tobacco, or smoking any other substance", and states that "smoking includes being in possession of lit tobacco or of anything lit which contains tobacco, or being in possession of any other lit substance in a form in which it could be smoked". Therefore, e-cigarettes do not qualify to be included in this legislation. Potentially an employee could claim constructive dismissal or, if dismissed for using the electronic cigarette outside of the designated smoking area, may claim and succeed with an unfair dismissal claim.

Therefore a separate area should be designated for users of electronic cigarettes. Given that electronic cigarettes do not come within the provisions of the Health Act 2006, it should be easier for an employer to designate an area for this purpose.


Of course there is nothing to stop any employee choosing to stand with the smokers in the designated smoking area should they wish to do so.

Although e-cigarettes have not been legally banned from being used inside buildings employers are entitled to set the rules of their use in their workplace and the consequences of their use. This can be implemented through a new Policy. Rules can be applied so that e-cigarettes are not permitted to be used inside and may only be used in designated areas and during designated breaks.

now i am not the best at putting my point across so if you can see any mistakes or anything you may feel needs changing before i send it off i would appreciate the input, many thanks

[giles]

Trouble is, there's nothing stopping them banning ecigs altogether, and they might do just that if you imply that they may leave themselves open to legal action if they make ecig users inhale passive smoke.

I'm not sure that you can win this one, but if your wife wants to make some response she might do better to send a memo saying "Could you please reconsider your policy? I don't believe any of the people in my workplace find my ecig use offensive, and it isn't doing them any harm. Making me go to a smoking area is unpleasant for me and a waste of the time that you are paying for"; and enclose a sheet about how harmless ecigs are.

[Roscopecotrain]

More and more work places are doing this. Still no rules for using one in a truck yet though.

Sent from my Galaxy Note 2

[ausfost]

giles if they banned e cigs altogether yet provide a shelter for tobacco cigarettes that could be seen as discrimination?

[Deleted]

Yes, they can't forcefully ban the use of electronic cigarette's if they provide employee's with a shelter for tobacco based cigarettes, as ausfrost said it would be classified as discrimination.

[ausfost]

it may be read as a bit stern i know, the reason i've worded it quite strongly, yet still polite i hope! is that the HR dept at my wifes work appear to be spawned from Frank Oz's studios (they are Muppets). three weeks ago she came home with a letter stating that they had changed her contracted hours and she would have to work Sunday nights, effective as of 5 days before she got the letter! no consultation or notice period, suffice to say we sent a letter straight back stating she was not prepared at this time to accept these changes, heard nothing back since and she has not worked on a Sunday yet.

[bomberharris]

Yes we also have to use the smoking shelter, not good

[ChillerVapes]

Jul 30, 2013 11:00:34 GMT bomberharris said:

Yes we also have to use the smoking shelter, not good

Why should a non smoker be forced to go stand / sit with smokers where breathing in the second hand smoke can cause potentially fatal damage to there body?

You can sue them if they don't at very least give you your own vaping area.
They cannot stop you from vaping if they are allowing the smokers to smoke. As said before, that is discrimination and you could take them to court for that too.

Get your bosses told! You can't and wont loose.

[giles]

They do sound as if it might be possible to bully them, so you could try your letter; but I doubt if there is any law preventing them from discriminating against ecig users compared to smokers. Easy enough to claim in court that their action was reasonable given that no health authority has declared passive vaping 100% safe; also that number of ecig users is small compared to smokers so the cost would be unreasonable. Remember they don't have to provide a smoking room, so they don't have to provide a vaping room.

[giles]

Oh and ChillerVapes - you wouldn't win a suit for damage due to passive smoking in a smoking room, because legally you don't have to go there. The fact that you're a nicotine addict is your problem, not your employers'.

I don't like any of this any more than you do, but there is no point in starting a battle you can't afford to fight, wouldn't win if you did, and is against the people who pay your wages.

If you could get a union on your side it would be a different story.

[lal]

It wouldn't be discrimination to provide a smoking shelter and not a vaping one. Unfortunately being a vaper is not a protected characteristic under equalities legislation.

[ausfost]

Jul 30, 2013 11:13:57 GMT giles said:

They do sound as if it might be possible to bully them, so you could try your letter; but I doubt if there is any law preventing them from discriminating against ecig users compared to smokers. Easy enough to claim in court that their action was reasonable given that no health authority has declared passive vaping 100% safe; also that number of ecig users is small compared to smokers so the cost would be unreasonable. Remember they don't have to provide a smoking room, so they don't have to provide a vaping room.

thanks for the comments, does it really come across as a bullying letter? there is no expectation of the company providing a shelter, just would like them to back down on their insistence that vapers must use the smokers shelter to use their e cigs. completely understand them not wanting people to vape indoors which as far as i am aware they do not, but designating an outside area specifically for vapers would incur no more cost to them than the making of a sign

[prr]

Faced with a dilemma such as this, I can see many employers simply banning smoking and vaping during working hours. There is no discrimination legislation that covers either smokers or vapers therefore there is no legal redress if they choose to do this. Recommend that you tread very carefully.

[Deleted]

Jul 30, 2013 9:31:45 GMT ausfost said:

Therefore a separate area should be designated for smokers of electronic cigarettes.

USERS of electronic cigarettes.  You clearly pointed out that they're not smoke emitting devices so you're contradicting yourself there mate.

[ausfost]

@tall thanks for pointing out that glaring error will change it on hardcopy