York Is imitating Michael Jackson a fair reason for dismissal?
Yes, said the Co-operative Group – however the employment tribunal held a different view and found the dismissal unfair overall.
Once again, this case demonstrates there must be a link between the offending behaviour and the reason for a dismissal. It is a further reminder that workplace policies must be communicated effectively through training the workforce in order to be relied upon by the employer.
Facts: LZ had been accused by a colleague, SM, of making high-pitched “hee hee” noises mimicking the US pop star. The colleague, who is black, also said LZ made monkey noises that were aimed at him. The Co-op took immediate disciplinary action based on its anti- harassment and bullying policy.
The tribunal agreed with the Co-op that the disciplinary process and investigation had been carried out correctly and that it had every right to uphold its policy.
However, the Co-op had used LZ’s admission of making silly noises as the reason for dismissal. LZ had never received a copy of the bullying and harassment policy or received any training in the company’s zero-tolerance policy in relation to juvenile and inappropriate behaviour. Crucially, the Co-op had ignored the point that LZ had denied racist intent and was upset at the disciplinary hearing when the allegation of racial bullying was made.
The Co-op failed to establish that the claimant had mimicked Michael Jackson near to SM on purpose because SM was black or that he had made monkey noises. The co-op did not question or investigate whether SM was offended simply by the making of the admitted inappropriate and juvenile noise. The dismissing officer had made no finding that the claimant had directed his inappropriate conduct at the complainant SM.
In employment law, the fact that LZ had no racial intent is not relevant. If the effect on SM was related to race, the claim still exists. However, here the Judge found as a fact that there was no evidence of discrimination related to race at all. In addition, there was no evidence that LZ was aware that such inappropriate and juvenile behaviour was gross misconduct that could lead to summary dismissal.
In the words of the judge “It is not reasonable for an employer to expect an employee to know and understand that inappropriate, juvenile or embarrassing behaviour unrelated to any protected characteristic amounted to gross misconduct. Dismissal did not fall within the band of reasonable responses. The claimant was unfairly dismissed.”
The tribunal did accept that LZ engaged in blameworthy conduct, consequently reducing the basic award by 50%. The total award granted was £8,541.05.
If you are unsure that you have made the right assessment in a disciplinary matter, better to call us before, rather than after, you have taken action that the employment tribunal may find falls outside a reasonable response.
Please contact our Employment Team on York 01904 716000, Wetherby 01937 583210 or Malton 01653 692247 or email law@warekay.co.uk
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