Facts
Michelin Tyre PLC used flammable products in their production processes and it had for many years treated smoking in non-authorised areas within the factory as gross misconduct. The introduction of the smoking ban legislation also provided the company with an opportunity to review and extend its policy on smoking and to reinforce the importance of that policy to all its employees.
S was caught smoking out of the fire door in the staff locker rooms and, following a disciplinary hearing, was dismissed for gross misconduct. S then brought an unfair dismissal claim.
Decision
In order for a dismissal to be potentially fair, you must be able to show that the employee was dismissed for a reason that fits within one of following categories: capability or qualifications, conduct, redundancy, retirement, illegality or some other substantial reason of a kind such as to justify the dismissal.
Clearly in this case, the tribunal had no difficulty in finding that the reason for dismissal was conduct. The next issue for the tribunal was to decide if it was reasonable for the company to have dismissed S for that reason in all the circumstances, i.e. did Michelin's decision fall within the band of reasonable responses that a reasonable employer might have adopted.
Factors that the tribunal took into account included the fact that S had 12 years’ service and he said he was under stress. The tribunal weighed up S’s personal circumstances against the importance of Michelin's no-smoking policy in preserving its business, property and the lives of its other staff. The Tribunal found that the company’s actions fell within the band of reasonable responses. S’s dismissal was therefore fair.
Comment - what does this mean for an employer?
Once you have adopted a particular disciplinary rule, you should ensure that it is enforced. A failure to enforce one rule can have a knock-on effect on the authority of the rest of the rules. It may also make it difficult to enforce the rule in the future, since it may be unfair to dismiss an employee for breaking a rule that has previously been disregarded.
The smoking ban came into effect in England on 1 July 2007- see our smoke-free guidance and policy.