Glam metal band Motley Crue were known for reminding their audience, via music and lyrics, that smoking was not allowed in school. The employment tribunal in Billings v Nestle UK recently reminded us in turn that vaping was not allowed in the disabled toilets at the food giant’s production factory. How, then, did the phantom vaper prove his dismissal unfair?
Mr Billings initially denied being a vaper. He then conceded that he occasionally did so, but only at weekends and at home. He maintained that he was not the culprit who caused an evacuation after the fire alarm triggered, and a consequential loss of production. The disciplinary officer weighed up the evidence on the gross misconduct charge and disagreed. He dismissed Mr Billings for breach of health and safety rules; for lying, and thereby destroying trust and confidence; for the lost production; and because, as an employee with 11 years’ service, he should have known better.
Nestle had no difficulty convincing the tribunal that it honestly believed in Mr Billings’ misconduct; had reasonable grounds to hold the belief, via its CCTV evidence; and carried out a sufficient investigation, interviewing all relevant witnesses. Its procedure was not in question either.
That left the need to show that dismissal fell within the range of reasonable responses. On this occasion, it did not.
The disciplinary officer had conceded in his own evidence that if Mr Billings had admitted his act and apologised, he would not have been dismissed. This fatally undermined the company’s case on health and safety and lost production. In the tribunal’s words, “failing to apologise or to accept responsibility is not misconduct”.
As to “should have known better”, this was entirely the wrong way round in the tribunal’s view. Mr Billings should have been given mitigating credit for his length of service.
Finally, vaping in the toilets had never been clearly spelt out anywhere as a “sacking offence”. If on this occasion the usual examples of gross misconduct such as theft and fighting had been qualified with a non-exhaustive proviso, this evidently did not suffice to catch Mr Billings’ offence within the net.
However, Mr Billings’ victory, while not Pyrrhic, was only partial. His £44,000 award was reduced by 50% for contributory conduct.
It was still an expensive lesson for Nestle. Might a fresh pair of eyes have helped when the disciplinary officer was weighing up options? There is always a danger that undeniable and material loss and inconvenience might cloud judgment.
We are always ready to lend a hand when it comes to second opinions ahead of disciplinary decisions. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
Share this post: