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Employee unfairly dismissed for smoking at work

Mr McDonough was employed by Bagnall UK, a construction company, as a heavy plant operator and had 15 years' continuous service. Mr McDonough was also a heavy smoker and had previously been caught smoking in his company car by his Employer, who had failed to implement any form of disciplinary proceedings.

In June 2009 the Employer implemented their disciplinary procedure against Mr McDonough for smoking in his company car on a subsequent occasion, although on this occasion Mr McDonough denied the allegations.

Mr McDonough alleged at the disciplinary hearing that the Company knew that he and many of his colleagues smoked in their company cars and that they had not taken any previous action.

Mr McDonough was nonetheless dismissed for gross misconduct and appealed on the basis that the Company had failed to investigate his allegations that his colleagues had also been smoking in their company cars and he had been victimised. The appeal was rejected and Mr McDonough issued proceedings in the employment tribunal for unfair dismissal.

The employment tribunal held that the Employer's failure to discipline on the previous occasions meant that the decision to dismiss him on this occasion was unfair. However they also held that Mr McDonough had contributed to his dismissal by 50% and reduced his compensation accordingly.

The message to Employers is to ensure that Company rules are understood by all members of staff and that any disciplinary proceedings are implemented in a timely and consistent manner.

McDonough -v- Bagnall UK Ltd ET/2104773/09