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Sarah Marten
Solicitor
Sarah joined Bermans in April 2026 and is a Solicitor in our Liverpool Employment team.
Sarah has extensive litigation experience acting for both Claimant and Respondent clients.
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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.
Bad Faith Allegations – Navigating Victimisation and Whistleblowing Risks
Adrian Fryer
Allegations made in bad faith present a particular legal challenge for employers. While it may be tempting to take firm action against an employee who appears to have fabricated a complaint, doing so can expose the organisation to claims for victimisation, detriment, or automatic unfair dismissal.
Continue ReadingPublic interest test in whistleblowing should focus on the employee’s belief – and their belief may be separate and distinct from their motive for disclosure
Adrian Fryer
Whistleblowers have protection from both detriment and unfair dismissal. However, the term ‘whistleblowing’ is often used colloquially to cover any disclosure of wrongdoing. In fact, its application, in an employment sense, is much narrower than that.
Continue Reading‘All reasonable steps’: about to become a new HR obsession?
Adrian Fryer
The concept of ‘all reasonable steps’ is not a new one. In harassment cases under Equality Act 2010, employers are able to defend a claim for harassment on the basis that they took ‘all reasonable steps’ to prevent it. The defence is narrow and very hard to run successfully. Many employers will run the defence in the early stages of a tribunal claim, only to quietly drop it in the face of an obvious inability to provide the evidence required to demonstrate that they had done it ‘all’.
Continue ReadingChoosing and managing companions: rights, risks and practical judgment
Adrian Fryer
Employees do not have a free choice of companion. Section 10 ERA 1999 limits the statutory right to:
- a work colleague, or
- a trade union official (employed by the union or certified as trained or experienced).
What happens to holiday entitlement when an employee is off sick?
Adrian Fryer
In most cases, employees continue to accrue statutory holiday entitlement while on sick leave, even if they are off work for long periods.
Continue ReadingDismissing for gross misconduct: lessons from Langton v Buckinghamshire Fire and Rescue
Adrian Fryer
A recent Employment tribunal judgment provides a good case study for employers of what not to do when dismissing an employee for gross misconduct. In Langton v Buckinghamshire Fire and Rescue, Mr Langton, an experienced firefighter, was summarily dismissed for gross misconduct after making a “misogynistic” comment saying a woman he rescued looked ‘haggard for her age’. The employment tribunal found that the dismissal was unfair.
Continue ReadingWhen Is a Right of Appeal Necessary?
Adrian Fryer
Handling appeals can feel like revisiting ground you would rather leave behind. However, from a legal perspective, offering an appeal is not optional in most cases – it is a fundamental part of a fair dismissal process.
Continue ReadingNational minimum wage changes from 1st April
Adrian Fryer
Last month, the Government released its latest ‘name and shame’ list of employers who failed to pay national minimum wage to their workers. On the list were high profile names including Costa, Bupa, and Hovis. This potentially reputationally damaging naming and shaming process sits alongside fines of up to 200% of the value of the underpayment. Paying national minimum wage incorrectly can be costly in more ways than one.
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