Nestlé worker ‘unfairly dismissed’ after refusing to admit vaping

An employment tribunal has ruled that a Nestlé employee was unfairly dismissed after being accused of vaping in workplace toilets, despite accepting that the company had reasonable grounds to believe the misconduct had taken place.

Jennifer Cafferky, Associate Solicitor in our employment team, reports on this recent case.

The case involved a long-serving technical operator who was dismissed for gross misconduct after a factory fire alarm was triggered in October 2023.

Following an internal investigation, including CCTV evidence, Nestlé concluded that the employee had been vaping in a disabled toilet, causing disruption to production after staff were evacuated from the factory. The employee denied vaping at work, although he later admitted he did vape occasionally at home on weekends.

The tribunal accepted that the company genuinely believed the employee had committed misconduct and found that its investigation had been reasonable. It also accepted that vaping on site breached workplace rules.

However, the tribunal concluded that the dismissal itself fell outside the range of reasonable responses open to a reasonable employer.

A key issue was evidence from the manager who conducted the disciplinary hearing. He accepted that the employee would probably not have been dismissed if he had admitted what happened and apologised, as another employee had done in a separate health and safety incident. That employee received a final written warning rather than dismissal.

The tribunal said the decisive factor appeared to be the employee’s refusal to admit wrongdoing, rather than the vaping incident itself. It stated that failing to apologise or accept responsibility “is not misconduct”.

The tribunal also criticised the employer for failing to make clear that vaping in the toilets would amount to gross misconduct. It said the employee’s long service should have been treated as mitigation rather than being used against him.

The employee had also brought disability discrimination claims linked to depression, having recently returned to work after a lengthy period of sickness absence. However, those claims were dismissed. The tribunal found the dismissal was related to the disciplinary issues rather than his disability.

Although the tribunal found the dismissal unfair, compensation was reduced by 50% because the employee’s own conduct had contributed to the situation.

The final award was just over £22,000.

The decision is a reminder that even where employers have reasonable grounds to believe misconduct has occurred, tribunals will still look closely at whether dismissal was a proportionate response and whether disciplinary policies clearly identify conduct that could lead to dismissal.

If you require advice on handling disciplinary matters including consistent fair outcomes, please contact Jennifer on 01228 516666 or click here to send her an email.