From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Charlie, a hotel worker and his disciplinary for gross misconduct for vaping.

Almost all employers ban smoking in their buildings, though some provide a place outside where smokers can gather. The law prohibits smoking in buildings accessible to the public but vaping is down to the individual employer.

We are finding that employers generally don’t allow vaping, either for image reasons – it looks like smoking from a distance – or because some people may not like the smell.

It is sensible for an employer to have a handbook that sets out the position but this is not strictly necessary as long as staff know that it is considered a disciplinary offence.

Charlie works in a hotel chain and had been given a written warning for vaping at work, though this wasn’t prohibited by the handbook. This week he came to us complaining that he had been invited to a disciplinary misconduct meeting for setting off a smoke alarm in one of the rooms and managers believe that his vaping was to blame.

When the alarm sounded, his manager asked him where his vaping ‘mech’ was and Charlie answered that it was in his locker. His manager didn’t follow that up at the time, for example by checking his pockets or his locker.

So now, it is hard to get to the truth of what set off the alarm, which can be triggered by deodorant and opening a can of carbonated drink.

We are advising Charlie and if his disciplinary goes against him we will help him with a claim for unfair dismissal – he has 15 years’ service with the hotel chain and a lot to lose from this disciplinary process.

He can’t claim that he didn’t know vaping was against the rules – although the handbook is silent on the matter, he knew from his previous disciplinary. But his defence is that he wasn’t vaping, there is no evidence that he was vaping and the employer must not dismiss if no reasonable employer would dismiss where there is no evidence.

Sadly for Charlie, he expects to be dismissed – he thinks his employer is gunning for him. We’ll keep you updated by updating this blog post.

Our clients agree to the use of their stories but names are changed for anonymity

By Jason Harbourne

Images courtesy of Jonn Williams, used under CC

**Update November 2016: The result of the disciplinary was that Charlie was cleared and so not given any warning**