Nestlé – Not So Sweet

March 27, 2026

A recent Tribunal decision in Mr Luke Billings v Nestlé UK Ltd offers a striking reminder that even where an employer reasonably believes misconduct has occurred, the reason for dismissal must still be fair, proportionate, and rooted in genuine misconduct.

The Tribunal ultimately found that the employer unfairly dismissed the employee following an incident involving the activation of a fire alarm at a production facility, whilst the company had reasonable grounds to believe he had been vaping in a prohibited area, the deciding factor in his dismissal was judged to be his failure to apologise, which does not amount to misconduct.

Background

The employee had been employed as a Technical Operator at the employer’s Hatton facility since August 2012. In October 2023, a fire alarm was triggered, halting production and requiring evacuation. Following an internal investigation, CCTV footage led the employer to conclude that the employee had been vaping in the disabled toilets.

The employee consistently denied the allegation, stating initially that he did not vape at all, before later acknowledging occasional vaping at home on weekends.

The employer considered the incident a health and safety breach, a loss of production, and a matter impacting trust and confidence. The employee was subsequently dismissed for gross misconduct, and the employee’s internal appeal was unsuccessful.

Importantly, the employee had recently returned to work after a lengthy period of sick leave due to depression which the employer accepted as a disability. The employee brought claims for unfair dismissal, direct disability discrimination, and discrimination arising from disability.

Tribunal Decision

The Tribunal dismissed both the employee’s direct disability discrimination claims and the claim of discrimination arising from disability.

The employee relied on a comparator, a non‑disabled colleague (Mr Marler) who had committed a similar health and safety breach by storing a washbag in a fire‑hose cabinet, but received only a final written warning. The Tribunal accepted this comparator as appropriate, however, it found that the difference in treatment was not because of disability, but because the comparator admitted fault and apologised, whereas the employee did not.

Separately, the Tribunal considered the fairness of the dismissal for alleged vaping. Although the employer had reasonable grounds to believe that the employee had been vaping, the Tribunal concluded that the dismissal did not fall within the “band of reasonable responses” and upheld the employee’s claim for unfair dismissal.

A key aspect of the decision was that the dismissal was not primarily from the alleged vaping incident, but from the employee’s refusal to apologise. The Tribunal noted in their judgment, that failing to admit fault does not amount to gross misconduct.

Key findings

  • The real reason for dismissal was the failure to apologise.
    The employer’s disciplinary officer (Mr Nasr) acknowledged that, had the employee accepted and apologised for the conduct, dismissal would not have occurred. The Tribunal regarded this as decisive.
  • The decision to dismiss was disproportionate.
    The incident was single and isolated, and the employee had an otherwise clean disciplinary record. The employee’s length of service should have been treated as a mitigating factor, not an aggravating one; and
  • Lack of clarity around the rules.
    The employer had no explicit written policy indicating that vaping in the toilets constituted gross misconduct.

Compensation and reduction for contributory conduct

Whilst the Tribunal determined that dismissal was unfair, the Tribunal found that the employee contributed to his own dismissal by vaping on site constituting as conduct the employee ought to have known was unacceptable. The employee’s compensatory award was subsequently reduced by 50%

Awards included:

  • Basic award: £7,073
  • Compensatory awards including loss of earnings, pension loss, and statutory rights: less the 50% reduction arising from employee contributory conduct: £22,216.72
Lessons for Employers

1. A fair process is not enough, and outcomes must also be reasonable.

The Tribunal found that the employer’s investigation met the required standards for an appropriate investigation, however, the Tribunal found that sanctions went beyond what a reasonable employer would impose.

2. Failure to apologise is not misconduct.

Employer’s must be cautious about treating a refusal to confess as an aggravating factor especially where disciplinary findings remain disputed. The Tribunal was clear that a refusal to confess (without additional background) is not gross misconduct.

Employer’s should only ensure that disciplinary outcomes are based on what happened rather than how an employee behaves in the hearing (unless that behaviour is independently inappropriate).

3. Clear policies are essential.

Employer’s should clearly define what constitutes gross misconduct and communicates these rules.

How we can help

For further information or to discuss issues relating to disciplinary investigations, or reviewing internal policies, please contact us to speak to a member of our Employment Team.

Darren Smith
Partner, Employment
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This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.

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