Even where employees have committed gross misconduct, dismissing them may be unreasonable. An Employment Tribunal (ET) made that point in the case of a store supervisor who was sacked for smoking on company premises (Williams v Wilko Ltd).

The woman worked for a national retail chain which took a zero-tolerance approach to staff use of tobacco products on any part of its property. There was a clear policy in place that categorised such use, whether inside or outside stores, as gross misconduct.

Following a disciplinary process, she was dismissed for the principal reason that she had routinely taken smoking breaks in the ‘goods inwards’ yard of the store where she worked. She subsequently launched ET proceedings, alleging that her dismissal was unfair.

Ruling on the matter, the ET found that her misconduct was indeed gross. The chain was entitled to take a tough approach to smoking on its premises and, even if she was unaware of the policy’s full rigour, she ought to have known better. Neither the investigation nor the disciplinary process leading up to her dismissal could be characterised as unreasonable.

In nevertheless upholding her complaint, the ET noted that she had worked for the chain for over 16 years and had an otherwise unblemished disciplinary record. The evidence suggested that there was at the very least a culture of smoking in the yard to which the store’s manager and assistant manager had turned a blind eye.

The ET noted that it could be said that, as a veteran employee in a supervisory role, she should have been fully aware of the strict no smoking policy and complied with it. Given the absence of any blot on her long service with the chain, however, she might reasonably have expected to be given some benefit of the doubt.

Overall, the ET concluded that her dismissal fell outside the range of reasonable responses open to a reasonable employer. The amount of her compensation would, if not agreed, be assessed at a further hearing. The ET acknowledged that she had contributed to her dismissal by her own conduct and ruled that her award should be reduced by 50 per cent.