The claimant began working for the respondent in early 1999. On 15 January 2009, the respondent’s health and safety manager (HSM) was approached by an employee complaining about three other employees smoking in the staff canteen. He subsequently received two further complaints on 16 and 23 January from two other employees. The HSM conducted his own investigation and came to the conclusion that smoking was taking place in the canteen. As well as being contrary to the Public Health (Tobacco) Acts 2002 and 2004 and a breach of the respondents pre-existing health and safety policy, it was a condition of the respondent’s insurance that no smoking be allowed on the premises. A decision was made to install CCTV cameras in the canteen for three days and this clearly showed the claimant and two others smoking. The employees who had complained wished to remain anonymous, so the respondent felt this was the only way of protecting them.

Individual meetings were arranged with the three employees and two of them admitted to smoking and were apologetic. They were both suspended on full pay pending a disciplinary hearing. The claimant refused to attend the meeting without a union representative and in his absence he was suspended. The respondent then wrote to him requesting his attendance at a disciplinary hearing. At the hearing the claimant said he did not recall smoking in the canteen and later denied having done so. The respondent made the decision to dismiss the claimant as he had committed a criminal offence, lost the respondent’s trust and refused to cooperate with the investigation.

Around this time a number of employees were made redundant. The other two employees who had admitted to smoking in the canteen received only the statutory minimum redundancy, while others had received an enhanced package. The claimant was simply dismissed. The claimant claimed that this was a guise to avoid paying a redundancy payment to him. He appealed the decision but the respondent stood by its decision.

The Tribunal did not accept that the claimant could not recall smoking in the canteen and found that his actions had amounted to gross misconduct. They found that this did warrant dismissal and that his refusal to cooperate with the investigation and disciplinary process warranted the distinction made between the claimant and the other two employees who were made redundant rather than dismissed. The Tribunal was also satisfied that the respondent’s non-disclosure of the identity of the employees who complained was not unreasonable in the circumstances. The claim under the Unfair Dismissals Acts 1977 to 2007 failed. There was also no entitlement to notice on the part of the claimant under section 8 of the Minimum Notice and Terms of Employment Acts.