Vaping ban to go up in smoke?

The prohibition on smoking tobacco products in enclosed public spaces (including workplaces) doesn’t apply to vaping or ‘smoking’ e-cigarettes.

However, many employers have taken the same stance on vaping as they have with smoking. This is despite Public Health England’s findings in a recent report which states that e-cigarettes are 95 per cent less harmful than tobacco products.

Nottinghamshire County Council recently announced a proposal to ban smoking and vaping during working time, affecting more than 9,000 employees. The proposed policy reportedly allows employees to smoke during lunch breaks (but not other breaks) provided they are not wearing their Council uniform or are near any Council property. Any employees in breach of this policy could face disciplinary action.

Helen Burgess, Shoosmiths

The Council argues that working time is lost as smokers take more breaks and they have more time off sick. The Council also cites a concern for the health of their staff (employers have an obligation to protect the health of their employees) and they argue that a ban would encourage the supposed 70 per cent of smokers who wish to quit to actually do so. The Council also states that employees who quit would serve as good role models to their children.

But can the Council actually implement their proposal?

Whether the ban will actually help people quit is a whole other argument. However, how the Council goes about introducing the policy could be troublesome depending on the view of smokers and the stance that they and their unions take. Unison, one of the largest unions in the UK, has already said they don’t believe it will work, that a ban will be impossible to police and they intend to ballot their members on the issue.

The Council will then have to engage in consultation with Unison, and other recognised unions, to agree the proposal (or a revised proposal if necessary). Usually consultation is carried out with a view to reaching agreement but this depends on the recognition agreement between the Council and relevant unions.

Any agreement reached would bind all employees, whether smokers or not and whether members of the union/s or not.

It’s easy to see how this issue has ignited debate – ensuring a healthy workforce versus an individual’s freedom to choose. Smokers would still be able to smoke outside of work so some may say there’s no issue. Alternatively, could there be a concession to allow vaping / e-cigarettes?

There are clearly pros and cons on both sides so it will be interesting to see how discussions between the Council and unions progress.

Helen Burgess is a partner at Shoosmiths

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