And speaking of verbally over-revving brings me to the case of Billings v NestUK Ltd [2024], in which the Employment Tribunal considered whether an employee had been unfairly dismissed for vaping in the workplace toilets.

Mr Billings was employed by NestUK Ltd as a technical operator from 6 August 2012 until 4 October 2023, when he was dismissed for gross misconduct.

The dispute arose in October 2023, when the fire alarm in the production factory where Mr Billings worked was activated. All staff were required to evacuate, and production ceased until it was deemed safe to return, causing disruption and lost production. Following a review of CCTV footage and an internal investigation, the cause was traced to someone vaping in one of the toilets.

The investigation concluded that Mr Billings had vaped in the disabled toilets, thereby triggering the fire alarm. Smoking or vaping on the premises was strictly prohibited. He denied the allegation and was subsequently invited to a disciplinary hearing, where he maintained that he had not been vaping on the day in question. As the hearing progressed and he was questioned further, he admitted that he occasionally vaped, but only at home on weekends.

The disciplinary officer, Mr Nasr, concluded that Mr Billings was responsible for activating the alarm and had been untruthful during the investigation. He determined that dismissal was an appropriate sanction, citing a breach of health and safety rules, a loss of trust and confidence due to perceived dishonesty, and the disruption and loss of production to the business. It was also noted that, given Mr Billings’ long tenure with the company, he should have known better. Mr Billings appealed the decision, but his appeal was dismissed.

During the disciplinary hearing, Mr Billings referred to the conduct of another employee, Mr Marler, who had also breached health and safety rules but had not been dismissed. Mr Marler had stored his washbag in a housing area used to enclose a fire hose, rather than in the lockers provided. Mr Marler acknowledged that his conduct posed a health and safety risk, admitted his mistake, and apologised. He received a final written warning.

Mr Billings subsequently brought a claim of unfair dismissal, direct disability discrimination and discrimination arising from a disability.

The Employment Tribunal accepted that Mr Marler was an appropriate comparator but did not find that the reason for the different treatment was Mr Billings’ disability. Instead, it concluded that the difference in treatment arose because Mr Marler admitted his misconduct and apologised, whereas Mr Billings neither admitted his misconduct nor apologised.

In his evidence, Mr Nasr accepted that had Mr Billings accepted his mistake and apologised, just like Mr Marler, he would not have been dismissed. Mr Billings argued that the handling of Mr Marler’s case demonstrated that his own dismissal had been unfair.

Accordingly, the different treatment was not due to Mr Billings’ disability, but rather because he did not accept responsibility or apologise. The ET therefore dismissed the direct discrimination aspect of the claim.

The ET, however, found that the employer’s decision to dismiss fell outside the range of reasonable responses available to a reasonable employer. It was determined that health and safety concerns and loss of production were not the principal reasons for dismissal, as Mr Nasr made clear in his evidence that, had Mr Billings admitted to vaping in the toilet and apologised, he would not have been dismissed. Accordingly, the decisive factor was Mr Billings’ failure to accept responsibility, and the ET held that failing to apologise or accept responsibility does not constitute misconduct.

The ET also highlighted that this was a single, isolated act in an otherwise unblemished career. It noted that insufficient weight had been given to the absence of any prior misconduct, making the dismissal disproportionate in the circumstances. Furthermore, the ET observed that the employer had taken the view that, because Mr Billings had been employed for so long, he should have known better. However, a reasonable employer would regard length of service as a mitigating factor, not a disadvantage.

The ET concluded that Mr Billings had been unfairly dismissed.

The ET awarded Mr Billings £22,216.72, reflecting a 50% reduction from the full award of £44,433.44 due to his contributory conduct.

This case is important because it demonstrates that even breaches of workplace rules, such as vaping in prohibited areas, do not automatically justify dismissal. The ET emphasised that dismissals must be proportionate and take into account mitigating factors, including a previously unblemished record, a single isolated incident, and length of service. Employers must also apply policies consistently and ensure that disciplinary decisions are objectively reasonable, rather than relying on assumptions about an employee’s character or conduct.