Decisions by two big-brand companies to ban their staff from using electronic cigarettes around their colleagues have only added to the confusion regarding the ideal workplace status of these popular smoking devices. As debate rages on about the health-related concerns over e-cigarettes, Uttoxeter’s Tesco branch and the local office of construction firm JCB have opted to treat e-cigarettes the same as conventional tobacco products. As such, employees can only fire up their e-cigs in designated smoking areas.

Developed to help smokers wean themselves off tobacco, e-cigarettes have been touted as less harmful, with manufacturers saying that they produce tar-free vapour that is free from dangerous by-products found in regular cigarettes.

Nonetheless, calls have emerged for the government to introduce a licensing regime for e-cigarettes to ensure that the products and their usage are regulated, including restricting sales to specific kinds of outlets and explicit labelling of chemical contents. Already this year, ministers have moved to ban the devices from being marketed or sold to people under 18. But on the other hand, plans are underway for them to be licensed as “medicines” on the NHS. As such, e-cigarettes could feasibly be available through pharmacies – in a similar way to nicotine patches – while doubts linger over their ultimate safety.

Given that set of apparent contradictions, then, how should employers regulate the use of e-cigarettes by their staff?

VIEW 1: “Help smokers quit normal tobacco products”

The Advisory, Conciliation and Arbitration Service (ACAS) – a body largely funded by the Department for Business, Innovation and Skills – acknowledges that it’s “in the interests of employers to do their bit to promote health and wellbeing in the workplace” and that supportive employers “may be able to provide help and advice for employees who want to quit smoking”. However, ACAS stops short of specifically promoting to the use of e-cigarettes as the answer.

Meanwhile, the charity Action on Smoking and Health (ASH) estimates that 1.3 million people are currently using electronic cigarettes in the UK, and suggests that workplace bans could force staffers back on to normal cigarettes. “It’s obviously up to individual employers to decide for themselves,” an ASH spokesperson said. “But we’d be disappointed if they decided to treat e-cigarettes the same as traditional cigarettes. The two products aren’t comparable, as e-cigarettes release vapour rather than smoke. The possible risk of treating the two the same is that you might encourage people to go back to smoking, and that’s bad for individuals’ health and their employers.”

In ASH’s view, traditional smoking “leads to increased levels of illness and absenteeism” and can “lower a worker’s productivity”. It is therefore reluctant to back sweeping bans. “While scientific evidence about the safety of e-cigarettes is limited at the minute,” it said, “health experts would certainly say they’re much, much less harmful than regular cigarettes. When you inhale smoke of any kind, even from cooking … it can cause serious respiratory problems.”

Furthermore, some bosses may consider the potential benefits that “office-based vaping” may have for work performance. Despite the public-spaces smoking ban coming into force in 2007, the habit has not vanished from the workplace, and employers have to accept that their workers require smoking breaks outside their HQ. This takes time away from their working day, and bosses may feel that the prospect of allowing staff to use e-cigarettes while remaining at their desks will cut down on wasted time.

VIEW 2: “Help colleagues avoid passive smoking”

On the fipside, specialist employment-law firm Shoosmiths argues that companies must be aware of their duties to protect the health and safety of their employees, whether smoker – or non-smoker. While e-cigarette usage in the workplace may be helpful to some, employers must also take heed of the potential (and importantly, as-yet unknown) effects that such devices could have on colleagues – particularly those who are pregnant, have previously suffered severe illnesses, or are trying to give up smoking.

Also, the firm argues, companies must think about their branding and how their staff engage with clients and customers. Essentially, does the use of e-cigarettes in the workplace fit in with the professional image of the organisation? Especially in workplaces that regularly experience contact with customers, such as restaurants and shops, would the use of the smoking device drive business away?

Another factor for bosses to be aware of is the risk of fire from using incorrect chargers or over-tightening connections to rechargeable batteries. Indeed, some battery-powered electronic models of e-cigarette have been known to explode while charging. Some versions use USB ports to charge, which, if plugged into work computers, could result in breaches of the employers IT policy.

VIEW 3: “Don’t let company policy go up in smoke”

Shoosmiths partner Adrian Hoggarth highlighted the case of Michelle Capewell, an ex-employee of PixiFoto, who has launched an Employment Tribunal claim alleging to have been sacked on the spot for vaping in the workplace. With the potential legal fallout in mind, Hoggarth stressed that employers must look very carefully at internal regulations when deciding on whether or not to impose a ban.

“Employers taking such a stance need to be aware of the risks involved,” he said. “Individuals will have a right to recourse against their employer if they have been subject to such action when there is no policy in place governing the same. Too many employers are falling into the trap of using statutory smoking legislation as a catch-all policy, forgetting the fact that those who vape are, in fact, classed as ‘non-smokers’.”

He added: “Employers can reduce the risk of being met with employment claims, including unfair and constructive dismissal, by instigating a policy on the use of e-cigarettes which clearly defines the procedures and penalties in place. If employees are aware of the potential sanctions for vaping in the workplace then employers are far more likely to be able to show a Tribunal that their actions were reasonable.”

Hoggarth considers this a straightforward management issue. “The policy need be no different to other policies implemented,” he said. “However, employers should ensure that any new practices or changes are communicated effectively to all staff, and should further make certain that there is transparency regarding the course of action should a breach occur.”