Care home manager unfairly dismissed after smoking at work: tribunal finds opportunistic motive

When a smoking breach becomes a dismissal opportunity

This case shows how a seemingly clear-cut misconduct dismissal can be undermined by the employer's timing and motives. The care home manager had worked for Prime Care (UK) Ltd for nine years without any previous disciplinary issues. In June 2022 she raised a grievance alleging bullying by a senior manager, Mr Borkhatria. The grievance was not upheld in August, but relations continued to deteriorate.

In October 2022, Mr Borkhatria received a report that the manager had been smoking in the office. He reviewed CCTV but did not suspend her until late October. By that point, the manager had already started working for another employer (in November 2022) while still employed by Prime Care. She was summarily dismissed for gross misconduct in November 2022.

The tribunal found that while smoking at work was a genuine breach of the no-smoking policy, the real reason for dismissal was the breakdown in the relationship following the grievance. The employer had known about the smoking for some time but only acted after the grievance process had concluded – a classic sign of an 'opportunistic dismissal'.

What the employer could have done differently

Prime Care could have avoided the unfair dismissal finding by acting consistently and promptly. If smoking in the office was a dismissible offence, it should have been treated that way for all employees, not just those who had raised grievances. The delay between the smoking report and the suspension (over two weeks) suggested the employer was waiting for the right moment to dismiss.

Additionally, the employer should have considered whether summary dismissal was proportionate for a first offence of smoking, especially for a long-serving employee. A final written warning might have been a more reasonable response.

Why this result matters

This case is a reminder that tribunals will look beyond the stated reason for dismissal to examine the employer's true motivation. Even where misconduct has occurred, if the employer's decision is influenced by other factors – such as a desire to remove a 'troublesome' employee who has raised a grievance – the dismissal can be unfair.

However, the case also shows that employees cannot ignore their own conduct. The manager's smoking contributed to her dismissal, and her dual employment meant she received no compensation for lost earnings. The 50% reduction in her basic award reflects the tribunal's view that she was partly responsible for what happened.