In its report on its findings, the tribunal mentioned Billings had been off sick from June 2022 to August 2023 attributable to melancholy and was on a phased return on the time of his dismissal.
Billings mentioned he was handled in another way in comparison with one other worker topic to related disciplinary proceedings on the time attributable to his incapacity, and claimed there was a “pre-determined” resolution to dismiss him.
Discrimination on the grounds of incapacity was not confirmed, with the panel discovering the choice to not dismiss one other worker was as a result of 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 mentioned.
“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 mentioned its resolution to dismiss him for not apologising was unreasonable.
Though the worker “contributed to his dismissal” and “would have known that vaping was not permitted”, it mentioned there was “no clear rule or warning that vaping in the toilets will be deemed an act of gross misconduct”, including 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 mentioned.
“Failing to apologise or to accept responsibility is not misconduct.”
Nestle mentioned it “cannot comment on individual employee matters”.
