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Up in Smoke: The Importance of Clear Vaping Policies in the Workplace
Adrian Fryer
Sometimes the factual background to a tribunal claim sounds like it has come straight out of high school. Billings v Nestle UK is one of those claims. The fire alarm had gone off at the factory where Mr Billings worked, requiring a full evacuation. An investigation into the cause of the fire alarm concluded that somebody had been vaping in the toilets. Nestle alleged that that somebody was Mr Billings. If this had been High School, Mr Billings would no doubt have received a detention – nothing more.
However, this being employment (and in a factory environment), he was dismissed for gross misconduct. The tribunal held that Mr Billings had been unfairly dismissed:
- The disciplinary officer was more concerned about Mr Billings’s lack of apology than the vaping itself. He openly acknowledged that if Mr Billings had admitted the conduct, he would not have been dismissed. The tribunal concluded that “failing to apologise or to accept responsibility is not misconduct”. The employer should not have relied upon it.
- Dismissal fell outside the range of reasonable responses available given that this was a single isolated act in an otherwise unblemished career.
- The employer had no policy which specifically said that vaping at work would be regarded as gross misconduct.
There are lessons to be learnt by employers from this high school-worthy situation:
- If vaping at work is really that much of an issue, you should make that crystal clear in your policies.
- Length of service and a clean disciplinary record can be important factors when considering whether summary dismissal is an appropriate sanction in response to alleged gross misconduct.
- Disciplinary officers should stick to the allegations in front of them and not get distracted by irrelevant points such as, in this case, the lack of an apology.