In its report on its findings, the tribunal said Billings had been off sick from June 2022 to August 2023 due to depression and was on a phased return at the time of his dismissal.
Billings said he was treated differently compared to another employee subject to similar disciplinary proceedings at the time due to his disability, and claimed there was a “pre-determined” decision to dismiss him.
Discrimination on the grounds of disability was not proven, with the panel finding the decision to not dismiss another employee was because he “admitted misconduct and apologised”, whereas Billings “did not admit his culpability and/or apologise”.
“Whilst dismissal amounts to unfavourable treatment, we do not find that it arose in consequence of [his] disability,” it said.
“It arose because the claimant was found to have been vaping in the toilets, which was considered an act of gross misconduct.”
While Nestle had “reasonable grounds” to suspect Billings had been vaping in the toilets and its investigation “fell within the range of reasonable responses open to a reasonable employer”, the tribunal said its decision to dismiss him for not apologising was unreasonable.
Though the employee “contributed to his dismissal” and “would have known that vaping was not permitted”, it said there was “no clear rule or warning that vaping in the toilets will be deemed an act of gross misconduct”, adding his prior good conduct was given “no or insufficient credit”.
“It is clear from the evidence [he] was dismissed principally for failing to apologise and to accept responsibility,” the report said.
“Failing to apologise or to accept responsibility is not misconduct.”
Nestle said it “cannot comment on individual employee matters”.
