He will receive £22,216.72 after an employment tribunal in Nottingham ruled the company had no right to dismiss him.

Mr Billing had worked at the factory for more than a decade.

When first confronted with CCTV footage showing him entering the bathroom, he denied vaping.

He continued to deny it before later admitting at a disciplinary hearing that he used e-cigarettes – but only at home and on weekends.

The tribunal heard staff had “to be evacuated” and production was brought to a standstill.

“As a consequence there was disruption and lost production,” the panel was told.

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Following an internal investigation, Nestle concluded the alarm had been triggered by Mr Billing vaping in a disabled toilet.

Smoking is strictly banned on site, and Mr Billing maintained he had not vaped when initially questioned.

The panel said that as questioning continued, he eventually admitted he would “occasionally vape but only at weekends and only at home”.

The tribunal heard he was dismissed for three reasons.

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NESTLE UK

“Firstly, he considered a breach of health and safety. Secondly, he lost trust and confidence in the Claimant because he believed he was lying. “Thirdly, there was a loss of production to the business,” the tribunal heard.

Nestle argued Mr Billing should have known better given his long service.

He brought claims of unfair dismissal and disability discrimination.

Mr Billing had been on a phased return to full-time work following a year’s sick leave for depression between June 2022 and August 2023, and argued this played a role in his dismissal.

He also pointed to another employee who stored a “washbag of clothing” in “a housing area used to enclose a fire hose”, but was not dismissed despite admitting the safety risk at a separate hearing shortly before his own.

Nestle said that had Mr Billing apologised and accepted responsibility – as the other employee had – he would not have been sacked.

The tribunal rejected his disability discrimination claim but upheld his complaint of unfair dismissal.

It found the “[disciplinary officer] made it clear in his evidence that had the Claimant accepted he had been vaping in the toilet, and apologised, he would not have been dismissed.”

The panel said the health and safety concerns and loss of production were not the main reasons for his dismissal.

“They played a lesser part in the decision to dismiss because they were not determinative. What was determinative was the failure to accept responsibility.

“Failing to apologise or to accept responsibility is not misconduct.”

In addition to a basic award, Mr Billing was compensated for lost earnings up to the point he would have returned to full-time work in November 2023, along with pension losses and statutory rights.

However, the total payout was reduced by half after the tribunal found “the Claimant has contributed to his dismissal” and “was equally to blame”.