‘Vaper’ causes production to halt, judge rules unfair dismissal!

By Annabel Priest

A recent employment tribunal decision has shocked the ‘legal world’ after a Nestlé factory worker was found to have been unfairly dismissed despite causing production to cease when he triggered a fire alarm by vaping in a disabled toilet. When confronted by his employer, the worker initially lied by denying any responsibility.

In Billings v Nestle UK Ltd (2026) the worker brought claims for unfair dismissal and disability discrimination, and has now won more than £22,000 after a tribunal ruled the dismissal was unfair after all.

What happened?

In October 2023, Nestlé bosses became concerned that the fire alarm in the production facility had been activated. The alarm resulted in all of the staff being evacuated and production ceasing until it was deemed safe to return.  Understandably, as a consequence of this disruption, the employer suffered financial loss.

It was of course crucial that a thorough internal investigation was conducted into the cause of the alarm activation and, after reviewing CCTV, the cause was found to be someone vaping in one of the disabled toilets. This person was believed to be Luke Billings, a technical operator at Nestlé’s Hatton Facility. Given that smoking or vaping on the premises is strictly prohibited, it was decided that a full disciplinary investigation into the incident was required.

Prior to this incident, Billings had been off work sick from June 2022 to August 2023 due to depression. He had only recently returned to work and was on a phased return, hoping to return to full time hours.

Billings was questioned about the incident at a disciplinary hearing. He initially denied vaping at all, later admitting that he did vape, although he purported that he only did so on occasion at the weekends or at home. During the disciplinary hearing, Billings referred to the conduct of another employee in a comparable situation whereby this colleague had stored his clothing and washbag in a housing area used to enclose a fire hose – amounting to a health and safety risk. This colleague apologised for his conduct, acknowledged the risks concerned and subsequently was given a final written warning only for his behaviour. Since this colleague was not disabled, Billings argued that he believed he was being treated inconsistently to his colleague, particularly in light of his previous long term sickness.

The disciplinary investigation concluded, and it was determined that despite his denial regarding vaping, Billings was responsible for the alarms being triggered. Billings was dismissed in October 2023 and the disciplinary officer explained that Billings’ repeated dishonesty when being questioned about the incident was the reason for his dismissal.  The disciplinary officer also went on to explain that the incident amounted to a breach of health and safety, wherein the company had lost trust and confidence in Billings because he was believed to have been lying and did not acknowledge the consequences of his behaviour at any time during the investigation. It was also detailed that the company had lost production, and that Billings ought to have known better given his long service. Billings appealed the dismissal, but the appeal was dismissed.

Billings brought claims for unfair dismissal and disability discrimination, again referencing the conduct of his colleague and stating that the inequality in his dismissal compared to his colleague’s final warning amounted to unfair dismissal and discrimination.

Surprisingly, the tribunal has now found that Billings’ dismissal was procedurally unfair, in light of the fact that the reason given for his dismissal was not the conduct during the incident, but that Billings has been dishonest throughout the disciplinary process. The disciplinary officer had told Billings that had he accepted his mistake and apologised like his colleague had, Billings would not have been dismissed.

Despite the very clear health and safety breach, and the fact that the conduct would have led to substantial financial and reputational loss to the company, the tribunal noted that the dismissal fell outside of the “range of reasonable responses” available to the employer because the focus had been removed from the health and safety breach and financial loss to the company, and was instead focussed solely around the concept of dishonesty. Billings was subsequently awarded £22,216.

The tribunal also criticised Nestlé’s treatment of Billings’ long service when arguing he “should have known better”, as opposed to taking into consideration his clear employment record. Additionally, the tribunal noted that there was no clear rule or warning that vaping in the toilets would be deemed an act of gross misconduct.

Conclusion

This case demonstrates how important it is to follow guidelines and provide clear reasoning which follows company policy and procedure when considering dismissal.

The consistency of treatment for different employees when handling disciplinary matters can be vital when mitigating the risk of a possible claim. In most cases, it is likely to be beneficial to obtain legal advice for guidance regarding the reasons to be given for dismissal following a full and fair investigation. It is also prudent to have policies and handbooks reviewed to ensure clarity regarding disciplinary rules so that policies spell out clearly where dismissal is a realistic outcome for particular behaviours.

For a free no obligation discussion about any matters raised in this article, or a quote for reviewing contracts, handbooks and policies, please contact Annabel Priest on 01604 609590 or email here.