A recent Employment Tribunal case highlights a key risk for employers because even where misconduct is proven, dismissal can still be unfair if the outcome is disproportionate.

In a case involving Nestlé UK Ltd, an employee was dismissed for gross misconduct after triggering a fire alarm by vaping in the toilet. This fire alarm activation caused the factory to be shut down and disrupting operations.

Nestlé UK Ltd followed a structured process being a full investigation, including CCTV evidence, a disciplinary hearing and a genuine belief that misconduct had occurred.

However, despite these steps, the Employment Tribunal concluded that the decision to dismiss fell outside the range of reasonable responses.

Key factors included the employee’s long and previously unblemished service, the incident being isolated and rather importantly, no clear rule that vaping constituted gross misconduct

Heavy reliance was also placed upon the employee’s failure to admit or apologise

The Tribunal concluded that a lesser sanction should have been considered.

Although the employee was found to be 50% responsible, the employer was still ordered to pay over £22,000 in compensation.

What this means for employers

• Process alone isn’t enough

Even a well-run investigation can lead to an unfair dismissal if the outcome is disproportionate.

• Proportionality is key

Employers must carefully balance the seriousness of the misconduct against mitigating factors.

• Clear policies matter

If behaviours are not clearly defined as gross misconduct, dismissal becomes harder to defend.

At Advo, our experienced and expert HR Consultants work with employers to reduce risk and ensure compliance at every stage of the employee lifecycle.

We can support you by guiding fair and compliant disciplinary processes and ensuring that all your employee documentation is clear, consistent, and legally robust.

If you would like support reviewing your disciplinary procedures or handling live cases, our team is here to help.