A Nestle employee, dismissed following an alleged vaping incident that led to a complete production halt, has been awarded a compensation of £22,000.
In October 2023, Luke Billings accidentally triggered the fire alarm at Nestle’s Tutbury plant in Staffordshire, causing the entire workforce to evacuate and disrupting operations.
Despite having over ten years of experience as a technical operator at the factory, Billings initially denied any vaping when confronted with CCTV footage showing him entering a disabled restroom to smoke.
During a subsequent internal disciplinary meeting, he admitted to using e-cigarettes but claimed it was limited to his home and only on weekends.
Billings, who never confessed to vaping inside the restroom, was terminated for gross misconduct.
However, a Nottingham employment tribunal has now awarded him £22,216.72, concluding that Nestle’s decision to terminate his employment for dishonesty was unjustified.
The panel heard the employee, who had worked at the coffee factory since 2012, set off the fire alarm on October 11, 2023.
It noted: ‘All staff had to be evacuated. Production ceased until it was deemed safe to return. As a consequence there was disruption and lost production.’
Luke Billings (pictured at work on the site in 2013) set off the fire alarm at the food giant’s facility in Tutbury, Staffordshire, in October 2023, triggering a full evacuation and halting work on the factory floor
The technical operator initially told bosses he did not vape when they confronted him with CCTV footage of him slipping into the bathroom to smoke
An internal investigation reviewing CCTV footage found it was caused by Mr Billings vaping in the disabled toilet. Any kind of smoking is forbidden on the site.
But when confronted by his employer, the panel said: ‘The Claimant maintained his position that he was not vaping in the toilets on the day in question.
‘He said he did not vape so it could not be him.’
It was only as questioning progressed that he ‘accepted that he did occasionally vape but only at weekends and only at home’, the panel added.
But despite this, Nestle’s disciplinary officer decided to dismiss the employee, for a series of reasons.
The tribunal heard: ‘Firstly, he considered a breach of health and safety. Secondly, he lost trust and confidence in the Claimant because he believed he was lying.
‘Thirdly, there was a loss of production to the business.
‘He concluded that the Claimant having been employed for a long time in the business ought to have known better.
‘The Claimant appealed but the appeal was dismissed.’
Mr Billings hauled the company before an employment tribunal, bringing claims of unfair dismissal and disability discrimination.
He was on a phased return to full-time work at the time after a year’s sick leave for depression, from June 2022 to August 2023.
The employee argued he would not have been sacked if this was not the case.
He pointed to a colleague who had stored a ‘washbag of clothing’ in ‘a housing area that is used to enclose a fire hose’ instead of a locker, the tribunal heard.
This other worker admitted this was a health and safety risk, apologised and was given a final written warning at another hearing just before Mr Billings’s.
Mr Billings said this staff member was in ‘a comparable situation’ but was not sacked – arguing this showed he was ‘treated inconsistently’ for his disability of depression.
But Nestle’s disciplinary officer said had he similarly ‘accepted his mistake and apologised’, he would have avoided dismissal.
But the worker (pictured) later conceded under questioning at an internal disciplinary hearing that he did in fact use e-cigarettes, but only at home and on weekends
The panel agreed: ‘The less favourable treatment was not because of the Claimant’s disability but because he did not admit his culpability and/or apologise.’
It added: ‘The reason for dismissal had nothing to do with the Claimant’s disability.’
His disability discrimination claim was therefore thrown out – but his allegation of unfair dismissal was upheld.
This was because ‘the decision to dismiss fell outside the range of reasonable responses open to a reasonable employer’, the tribunal heard.
The panel noted: ‘[The disciplinary officer] made it clear in his evidence that had the Claimant accepted he had been vaping in the toilet, and apologised, he would not have been dismissed.
‘In other words, health and safety and loss of production were not the principal reasons.
‘They played a lesser part in the decision to dismiss because they were not determinative. What was determinative was the failure to accept responsibility.
‘Failing to apologise or to accept responsibility is not misconduct.’
It also concluded sacking Mr Billings was ‘disproportionate’, after ‘a single isolated act’ in an otherwise ‘unblemished career’.
Nestle has now been ordered to pay him compensation.
On top of a basic award, he was reimbursed for the earnings he lost that he was set to accrue by date he was set to return full-time, in November 2023.
The sum also took into account his loss of pension benefits and statutory rights.
The tribunal heard the figure was half what it otherwise would have been, as ‘the Claimant has contributed to his dismissal’ and was ‘equally to blame’ for it.
