B Campbell Mr Christopher Hampton v – Solicitor Saint-Gobain Building Distribution Limited — 2021

The claimant, Mr Christopher Hampton, was employed by the respondent from 16 June 2003 until his dismissal without notice on 13 November 2020. The tribunal found that the dismissal arose from conduct: the respondent relied on CCTV evidence and investigation notes which showed the claimant using a vape/e-cigarette on the factory floor at Cumbernauld in breach of workplace rules. The claimant accepted that he had used a vape, said he knew it was against company policy, and the tribunal accepted that the respondent had reason to regard the conduct as gross misconduct because it created a potential fire risk near sawdust and machinery.

The tribunal applied the Burchell test and found that the respondent genuinely believed the claimant was guilty of misconduct, had reasonable grounds for that belief, and carried out as much investigation as was reasonable in the circumstances. It noted that the claimant’s account changed during the process, including whether the vape had been activated, and that there were no obvious further lines of enquiry which needed to be pursued. The tribunal also referred to Sainsbury's Supermarkets Ltd v Hitt when considering the adequacy of the investigation.

Applying section 98(4) ERA 1996 and the band of reasonable responses approach, the tribunal held that dismissal was within the range of reasonable responses open to the respondent. It accepted that the sanction was towards the harsher end, particularly given the claimant’s long service and the absence of actual harm, but found that the respondent was entitled to rely on the potential safety risk and its view that there was too great a likelihood of repetition. The tribunal also rejected the claimant’s inconsistency argument because there was insufficient evidence about the alleged comparator case.

The tribunal further found that the virtual hearing arrangements did not make the process unfair. It accepted that the Teams hearing had some technical difficulty and that a mask worn by the note-taker had a drawn smile, but held that these matters did not affect fairness. A dispute about whether a no-vaping sign had been posted before or after November 2020 was secondary, because the claimant had ultimately accepted that vaping inside the building was forbidden. The claim for unfair dismissal was therefore dismissed.