Mr L Zawadzki v The Co-operative Group: 6007631/2024

EMPLOYMENT TRIBUNALS

Case No 6007631/2024

Between

Mr L ZawadzkiClaimant

The Co-operative GroupRespondent

Before

Employment Judge Porter

Date 27 July 2025

JUDGMENT

[1]The claimant was unfairly dismissed.

[2]The claimant contributed to the dismissal. It is just and equitable to reduce the basic and compensatory awards by 50%.

[3]The respondent is ordered to pay to the claimant the sum of £10,611.05 comprising:a. Basic Award in the sum of £2,070.00; and

b. Compensatory Award in the sum of £8,541.05

[4]The recoupment regulations apply. The relevant information is:(a) Grand total of the award £10,611.05

(b) Prescribed element £ 8,291.05

(d) Excess of grand total over prescribed element £ 2,320.00

REASONS

[1]Reasons are provided pursuant to the oral request of the respondent at the hearing.

Issues to be determined

[2]At the outset it was confirmed that this was a claim of unfair dismissal only. The issues were agreed as: 2.1. Has the respondent shown the reason or principal reason for dismissal. 2.2. Was it a potentially fair reason under section 98 Employment Rights Act 1996? 2.3. If so, applying the test of fairness in section 98(4), did the respondent act reasonably in all the circumstances in treating that reason as sufficient reason to dismiss the claimant? 2.4. If the reason was misconduct, did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: 2.4.1. The respondent genuinely believed the claimant had committed misconduct; 2.4.2. there were reasonable grounds for that belief; 2.4.3. at the time the belief was formed the respondent had carried out a reasonable investigation; 2.4.4. the respondent followed a reasonably fair procedure; 2.4.5. dismissal was within the band of reasonable responses. In particular: 2.4.5.1. did the claimant have any prior disciplinary warnings? 2.4.5.2. was the conduct gross misconduct justifying summary dismissal, as alleged? 2.4.5.3. Was the claimant aware that this misconduct could lead to instant dismissal? 2.4.5.4. If not, should he have been aware? Polkey principle 2.5. If the dismissal was procedurally unfair is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? If so, should the claimant’s compensation be reduced? By how much? Contributory conduct 2.6. If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? 2.7. What basic award is payable to the claimant, if any? Would it be just and equitable to reduce the basic award because of any conduct of the claimant before the dismissal? If so, to what extent? ORDERS

[3]A number of orders were made for the conduct and good management of the proceedings during the course of the Hearing. In making the orders the tribunal considered the overriding objective and the Employment Tribunals Rules of Procedure 2013. Orders included the following.

[4]The respondent sought to rely on documentary evidence not contained in the agreed bundle, namely the respondent’s Bullying, Harassment and Discrimination Policy. The claimant raised no objection to its introduction. This was a relevant document and the tribunal agreed and ordered that it should form part of the documentary evidence. Submissions

[5]Representative for the claimant made a number of detailed submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:- 5.1. The claimant was given no guidance as to how the suspension and investigation process would affect him; 5.2. the respondent interviewed only people put forward by the complainant SM; 5.3. prior to the disciplinary hearing the claimant did not have the chance to review the witness evidence; 5.4. the dismissing officer relied on SM’s account without corroboration. The CCTV showed no evidence of the claimant and SM together when the alleged witness AH was around; 5.5. The respondent did not investigate whether there was banter in the workplace which had taken place on a regular basis without complaint from the managers; 5.6. there was a mismatch between the complaint from SM and the reason for the dismissal. The respondent used the claimant’s admission of making silly noises as the reason for dismissal. The claimant denied making noises like Michael Jackson, denied making any racist remarks or comments. The claimant was upset at the disciplinary hearing when the allegation of racial bullying was made. He therefore raised his voice but immediately apologised; 5.7. the claimant never received a copy of the bullying and harassment policy, he did not receive any training in that policy; 5.8. the claimant had received no previous warnings and dismissal was an unreasonable response.

[6]Consultant for the respondent made a number of detailed submissions which the tribunal has considered with care but does not rehearse in full here. In essence it was asserted that:- 6.1. The reason for dismissal was conduct. The disciplinary procedure clearly states that breaches of the respondent’s policy re bullying and harassment can amount to gross misconduct; 6.2. Dismissal fell within the band of reasonable responses. The claimant’s evidence and explanations as to his conduct were inconsistent and contradictory. He aimed to minimise his conduct with the dismissing officer and appeal officer by suggesting that his conduct was merely a “Lucas laugh.” At other times he admitted engaging in banter which went beyond the boundaries of acceptable behaviour but was not directed at the complainant SM. But at the disciplinary hearing the claimant admitted making noises in the workplace which were embarrassing and juvenile but not racist; 6.3. the respondent had adopted a zero tolerance policy of bullying and harassment and discrimination in the workplace. It is for the respondent to adopt that policy and implement it as they see fit; 6.4. SM had the courage to come forward and say he was bullied. The respondent was right to investigate and ask the claimant for an explanation. The respondent was entitled to conclude that the conduct was inappropriate and offensive to a colleague; 6.5. Training had been put in place by the respondent which prompted the complaint from SM. That was the evidence of the zero tolerance policy working; 6.6. Other employers may not have dismissed but dismissal falls within the band of reasonable responses; 6.7. The respondent followed a fair procedure. There was a thorough and comprehensive investigation. The claimant had the opportunity to give his explanation. The claimant was fully aware that the allegations may result in dismissal. The claimant was supported throughout by the trade union; 6.8. if the tribunal finds that the dismissal was unfair the respondent asks that any compensation be reduced because of contributory fault. The claimant admitted making inappropriate and juvenile comments in the workplace to the dismissing officer. The claimant left the appeal hearing disgruntled and angry and therefore there was no option but to uphold the decision on appeal; 6.9. Further, if there was any minor breach or flaw in the procedure the respondent argues that there was no procedural flaw in the process that would undermine the validity of the decision to dismiss. The respondent invites this tribunal to make 100% reduction in any compensation on the grounds that if a fair procedure had been adopted the claimant would have been dismissed in any event.

Evidence

[7]The claimant gave evidence. In addition he relied upon the evidence of:- 7.1. Adrienna Paradowska, his friend and representative; 7.2. Michael Souness, former work colleague; 7.3. Stuart Dodd, former work colleague.

[8]The respondent relied upon the evidence of:- 8.1. Judith McGrellis, investigating officer; 8.2. Jamieson Easson , dismissing officer; 8.3. Abs Yesuf, appeal officer.

[9]The witnesses, other than Adrienna Paradowska, Michael Souness, Stuart Dodd, and Judith McGrellis, provided their evidence from written witness statements. They were subject to cross-examination, questioning by the tribunal and, where appropriate, re-examination.

[10]The claimant relied upon the written evidence of Adrienna Paradowska, Michael Souness, and Stuart Dodd. The respondent relied upon the written evidence of Judith McGrellis. The tribunal agreed to consider that evidence, noting that it was a question of how much weight it was prepared to attach to the evidence of a witness who had not attended tribunal and could not be questioned on the veracity of their evidence. It was noted that Adrienna Paradowska was in attendance and was prepared to give evidence. However, the respondent’s representative indicated that he had no questions to ask in cross-examination. EJ Porter confirmed that she had no questions. The claimant therefore did not call Ms Paradowska but relied on her unchallenged written evidence.

[11]An agreed bundle of documents was presented. Additional documents were presented during the course of the Hearing, either in accordance with the Orders outlined above or with consent. References to page numbers in these Reasons are references to the page numbers in the agreed Bundle.

Facts

[12]Having considered all the evidence the tribunal has made the following findings of fact. Where a conflict of evidence arose the tribunal has resolved the same, on the balance of probabilities, in accordance with the following findings.

[13]The respondent is a limited company that provides a variety of services over various sectors, including food, funerals, insurance, and legal services.

[14]The claimant was employed by the respondent in the capacity of Warehouse Operative from 7 December 2015 to 7 March 2024 when his employment was terminated by dismissal.

[15]The respondent has not provided the tribunal with a copy of the claimant’s contract of employment. It relies on a Statement of Terms and Conditions agreed between the former employer, Wincanton and Somerfield, and the trade union (R35-58) and its non exhaustive list of examples of gross misconduct which includes: ix. Sexual, racial or disability discrimination, harassment or bullying

[16]The respondent also relies upon its Bullying Harassment and Discrimination Policy which provides descriptions of bullying and harassment and includes the following statement: Just so you're aware, if we find that you've bullied or harassed or discriminated against someone we regard this as potential gross misconduct and you may be dismissed under the Disciplinary Policy.

[17]The respondent has not provided a copy of any separate Disciplinary Policy.

[18]The claimant had seen neither the Statement of Terms and Conditions or the Bullying Harassment and Discrimination policy before they appeared in the bundle for the tribunal hearing.

[19]In or around December 2023 the respondent conducted some training, which they describe as a “statement of intent session” on the topic of bullying and harassment in the workplace. It was attended by a group of about 12 colleagues which included one of the claimant’s work colleagues, “SM”. The claimant was not in attendance. There is no satisfactory evidence that the claimant attended any such training session or had any other training on the topic of bullying and harassment and/or the respondent’s Bullying Harassment and Discrimination Policy (“BHD policy”).

[20]At the end of the session SM spoke to his manager and reported that he had been the victim of bullying by the claimant and another colleague, HW, who he thought had been making inappropriate monkey noises that were directed at him. The manager reported this to Judith McGrellis, Warehouse Shift Manager, who commenced an investigation.

[21]The initial investigatory meeting with SM was held on 21 December 2023. SM alleged that the claimant had been impersonating the singer Michael Jackson, by raising his voice in a very high-pitched tone, just like the singer does and had made monkey noises (B 59-60).

[22]At that meeting SM also stated that another work colleague Alan Horton (AH) witnessed some of the incidents and an investigatory meeting was held with him on the same day. (B61-62). AH stated that he had heard a screaming noise in the style of Michael Jackson which was coming from the claimant. He said he didn't think anything of this at the time but later in the night he saw SM who asked him if he had heard the noise or comment in the cage area. AH confirmed he had heard it whereupon SM explained to AH that he had been experiencing this for weeks. AH confirmed that SM looked very distressed by this episode.

[23]The claimant was in the depot at that time and Ms McGrelllis decided to suspend him pending an investigation. She spoke to the claimant away from everyone else and told him that he had been suspended because of allegations of breach of the bullying and harassment policy , that he had made inappropriate comments of a discriminatory nature causing hurt and offence to a work colleague (B 63). She did not tell him who had made the complaints or the details of the complaint.

[24]A letter dated 22 December 2023 (B65) was sent to the claimant, confirming that he was suspended because of “an alleged breach of the bullying, harassment and discrimination policy, specifically making inappropriate comments to a colleague causing hurt and distress.” Again, he was not told the precise nature of the allegations against him or the name of the colleague.

[25]At an investigation meeting on 27 December 2023 SM stated that he had been bullied by the claimant and another work colleague for between 1 and 2 years, and that this comprised: o They were racist towards him; o They screamed around him in a Michael Jackson voice. He said that the claimant and the other work colleague did that because he, SM, was black. o They made monkey noises.

[26]SM stated that he decided to make a complaint only when the behaviour had been witnessed by a colleague AH.

[27]An investigation took place when the claimant and other work colleagues were interviewed about comments or noises that the claimant had made in the work place.

[28]Ms McGrellis held an investigation meeting with Chris Holden (CH) on 29 December 2023 (B71-73). CH said that the claimant made squealing noises, they were not directed at SM, it was just the claimant messing about. He did not describe the squealing as monkey noises. He said that SM had never complained to him about the claimant’s behaviour.

[29]An Investigation meeting was held with Will Piling (WP) on 30 December 2023. (B74-75). He had not been named as a witness by SM but had asked to speak to the investigating officer. He stated: About 5 or 6 months ago, me, (SM) , Lucasz (claimant), Hannah was doing chill putaway. Lucasz and Hannah were in the same aisle, Lucasz was doing the stupid orgasm noise that he always does. It annoys a lot of people, he was talking to Hannah, he flirts and talks to Hannah as he always does. (SM) was in the opposite aisle; I can't remember where I was. (SM) came to me and said that he wanted me to come with him and make a complaint. He said it was about the noise Lucasz was making. Piling told SM that it was not a racist noise it was an orgasmic noise, and it was probably aimed at Hannah. SM said Ok. WP added: I used to make this noise with Ant Hull (another work colleague), this is how we used to greet each other

[30]Ms McGrellis held an investigation meeting with the claimant on 3 January 2024(B76-80). In his investigation interview the claimant denied impersonating Michael Jackson, denied making monkey noises. He admitted that he made grunting and moaning noises with another work colleague and agreed that these could be described as “orgasmic” and that this behaviour was not appropriate in the workplace. It was reported to the claimant by the investigating officer that SM believed that this behaviour was directed him and was racist behaviour. The claimant denied this saying: In last 18 months we ( claimant and SM) was working close together and go on well with each other … plenty of chats in the last 18 months he (SM) never gave me any sign that I have upset him or causing harm in what we have said with each other…. I'm embarrassed that he took it that way. I'm sorry and I wish he could have said something or speak to me sooner and I know it's not his fault to speak to me but I am not that person to bully or hurt someone in that way

[31]The claimant’s trade union representative stated that the claimant had told him that the reason he left Poland was to escape racism and the trade union representative didn't believe it was ever the claimant’s intention to cause any upset.

[32]Ms McGrellis had a final meeting with SM on 14 January 2024 (B90-92) when she reported that they had checked the CCTV for the time SM had said that the claimant had made the Michael Jackson noises to him as witnessed by AH. However, it was not possible to ascertain from the CCTV that AH was a witness to any such behaviour. Ms McGrellis requested more detail of the allegations and any other witnesses but SM was unable to provide any. Ms McGrellis stated that this was difficult because the claimant was not denying making noises, but was saying that they are not monkey noises and are not aimed at SM.

[33]Ms McGrellis explained to SM that this was an ongoing investigation and SM should revert to her with any additional information if he could.

[34]No further investigation meetings were held with SM.

[35]On 13 February 2024 a further investigation meeting was held with the claimant. This meeting was conducted by S Heaney. A different investigator. She confirmed that one allegation related to an incident on 19 December 2023 when SM and a witness said that the claimant had made a noise which mimicked Michael Jackson and added that the witness had described this noise as a high pitched “hee hee” noise. The claimant explained that work colleagues did comment on his high pitched laugh which had been called the “Lucas laugh.” The claimant again accepted that he made noises in the workplace, which were not directed at anyone and which he did not accept were racist. He denied making monkey noises.

[36]The name of the witness was not provided at the time or during the disciplinary process or during the tribunal hearing. A copy of the witness statement in which this was stated has not been provided in the bundle of documents prepared for the tribunal hearing.

[37]Ms McGrellis passed the file to her line manager. She took no further part in the proceedings. She did not prepare an investigation report. A decision was made to proceed to disciplinary action. It is not clear who made that decision, and on what basis.

[38]The claimant was invited to attend a disciplinary hearing (B101) when he was told that the allegation was: alleged breach of the bullying, harassment, and discrimination policy, specifically making inappropriate comments to a colleague causing hurt and distress. The claimant was advised that this was considered to be gross misconduct for which he could be dismissed without notice. He was advised of his right to be represented.

[39]The claimant was not provided with the notes of the investigation meetings in advance of the disciplinary hearing. [On this the tribunal accepts the evidence of the claimant. The invitation to the disciplinary hearing does not have any attachment does not refer to any investigation pack. They respondent has been unable to provide evidence to support their assertion that copies of the noted of the investigation meetings made available to the claimant in advance of the disciplinary hearing.]

[40]The disciplinary hearing took place on 29 February 2024. Mr J Eassom, Operations Manager, attended the meeting as disciplining officer. The claimant was represented by the trade union at the disciplinary hearing. The trade union representative did not complain that the respondent had failed to provide the notes from the investigation meetings at the commencement of the hearing, did not ask for an adjournment so that copies could be provided. Some of the witness statements were referred to during the course of the hearing and copies provided to enable the claimant to reply to questions.

[41]At the outset of the hearing Mr Eassom confirmed that the allegation was admitted BHD policy specifically making inappropriate comments/noises causing hurt and distress.

[42]At the disciplinary hearing: 42.1. the claimant was asked to make the noise which he admitted to making in the workplace. He made that noise, which the dismissing officer described as “embarrassing”; 42.2. the claimant accepted that he would not make that noise in a public place outside work, that it was inappropriate and juvenile to make that noise in the workplace. He stated that if he heard those noises at work he would not think they were directed at him or that they were racist; 42.3. Mr Eassom replied: I have not mentioned any allegation of racism in the allegation, so the allegation is specifically around BHD inappropriate comments/noises causing hurt and distress. 42.4. Mr Eassom then proceeded ask a number of questions and the claimant answered them. In doing so he raised his voice. Mr Eassom regarded the claimant’s conduct at this point as being aggressive. He told the claimant not to raise his voice and the claimant apologised; 42.5. There was no other complaint about the claimant's behaviour at that disciplinary hearing. 42.6. The claimant raised his voice because he was upset as he understood that throughout the suspension and the investigation he had been accused of racism and this was the first time that he understood that the allegation of racism had not been progressed. [ On this the tribunal accepts the evidence of the claimant] 42.7. The claimant denied that he had received any training on the bullying and harassment policy. 42.8. The claimant said he was not the only one making these noises in the workplace; 42.9. The claimant stated that he did joke around, that he did make jokes, but that this was to make people laugh and it was not his intention to make these jokes against anyone or to make them feel bad about themselves 42.10. The trade union rep stated that the claimant had been open and honest about the allegation and was genuinely remorseful over the thought that he caused a colleague hurt and distress and added: I think his honesty should be taken into consideration as there is no credible witness or cctv to prove any ill intent and Lukasz did not get the opportunity to take part in the colleague code sessions which if he had I believe the behaviour would of change(d).

[43]The meeting was closed to enable Mr Eassom to reach a decision. Mr Eassom did not carry out any further investigation before reaching the decision to summarily dismiss the claimant. He informed the claimant of his decision by letter dated 6 March 2024 (B107) identifies the reason for dismissal as: gross misconduct, specifically for admitted breach of the bullying, harassment, and discrimination policy, specifically making inappropriate comments/noises towards a colleague causing hurt and distress. I’ve made this decision because: You were identified by a colleague working on night shift as a person that makes noises with another colleague when in their vicinity. The colleague states, in relation to you and the other colleague, ‘They are always messing around chasing each other. They seem to be trying to provoke me. They are trying to bully me, that’s what I’m thinking, if we are in the same chamber, if they are working in the same chamber, they are making Michael Jackson voices, if she picks in another aisle, she will shout across in a Michael Jackson voice towards me’. Due to these actions the colleague was made to feel that these noises were aimed towards them as there were no other colleagues within their proximity. In support of the colleague’s allegation an independent witness has confirmed hearing in their words ‘a sort of He-he noise’, they confirmed that upon looking in the direction of which the noise came from, you were the person there. The colleague also confirms in this statement dated 28/12/2023 that although he didn’t see you make the noise it isn’t the first time; he has heard you do it. In your own statement dated 03/01/2024 the allegation is put to you, your reply ‘I’ve never done any impression of MJ, I don’t know what that means. Sometimes we do make noises to each other to make each other laugh. I get where he is going with the monkey noises but that never happened’. This is admittance to the allegation and is not behavior in which we condone or tolerate at co-op, a colleague has heard the noises you have made, and felt hurt and distress, this constitutes as a breach of our bullying, harassment, and discrimination policy.

[44]In his evidence in chief of before the tribunal Mr Eassom stated: I put the allegation to Lucasz about him making noises that were directed toward (SM). He accepted that he had made noises and they were inappropriate but denied they were directed toward (SM) and also denied they were racist. Having carefully considered what Lucasz had told me at the disciplinary hearing I did not consider his explanations satisfactory. Lucasz admitted to making the noises which was immature and (SM) had found them offensive and thought they were directed at him.

[45]The claimant was summarily dismissed and the effective date of termination was 7 March 2024.

[46]The claimant appealed against the decision. The appeal hearing took place on 26 April 2024 before the general manager Mr. A Yesufu. The claimant attended with his trade union representative. At the outset of the hearing Mr Yesufu asked the claimant to clarify the grounds of his appeal and to confirm whether he accepted that he had made the remarks in the workplace or not. The claimant became angry at this, believing that my decision had already been made and he banged his fist on the table and left the room, shouting at Mr Yesufu, saying words to the effect that this was ridiculous or a joke. The claimant did not return to the appeal hearing to progress the appeal. Mr Yesufu therefore confirmed the decision to dismiss.

[47]At the termination of his employment the claimant was earning £517.50 gross per week, £419.80 net. These figures are agreed. The claimant had completed 8 years of service and was aged 33. The claimant was in receipt of Universal Credit until he obtained alternative employment on 10 December 2024. From that date the claimant earned more wages than he had earned with the respondent and his loss of earning stopped at that point. The claimant had mitigated his loss prior to that date by taking reasonable steps to find alternative employment.

The Law

[48]An employer must show the reason for dismissal, or if more than one, the principal reason, and that the reason fell within one of the categories of a potentially fair reason set out in Section 98(1) and (2) Employment Rights Act 1996 (“ERA 1996”). It is for the employer to show the reason for dismissal and that it was a potentially fair one, that is, that it was capable of justifying the dismissal. The employer does not have to prove that it did justify the dismissal because that is a matter for the tribunal to assess when considering the question of reasonableness.

[49]Misconduct is a potentially fair reason for dismissal. British Home Stores Ltd v Burchell

[1980] ICR 303

provides useful guidelines in determining this question. It sets out a three-fold test stating that the employer must show that: o he genuinely believed that the conduct complained of had taken place; o he had in mind reasonable grounds upon which to sustain that belief; and o At the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in the circumstances.

[50]The Tribunal notes and takes regard of the fact that the guidelines set out in Burchell are guidelines only and that the burden of proof on the question of reasonableness does not fall upon the employer under this head, and is a question for the Tribunal to decide, when appropriate, in determining the question of reasonableness under Section 98(4) ERA 1996, under which the burden of proof is neutral. Boys and Girls Welfare Society v McDonald

[1997] ICR 693

. as confirmed in West London Mental Health Trust v Sarkar

[2009] IRLR 512

, which was not disturbed on this point by the Court of Appeal. In Sheffield Health & Social Care NHS Foundation Trust v Crabtree

UKEAT/0331/09

the EAT noted that in applying the principles set out in British Home Stores Ltd v Burchell: “The first question raised by Arnold J: did the employer have a genuine belief in the misconduct alleged” goes to the reason for dismissal. The burden of showing a potentially fair reason rests with the employer.” “However, the second and third questions, reasonable grounds for the belief based on a reasonable investigation, go to the question of reasonableness under section 98(4) Employment Rights Act 1996 and there the burden is neutral.”

[51]Once the employer has shown a potentially fair reason for dismissing, the Tribunal must decide whether that employer acted reasonably or unreasonably in dismissing for that reason. The burden of proof is neutral. It is for the Tribunal to decide. Section 98(4) ERA 1996 states:- “The determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case”.

[52]The test of whether or not the employer acted reasonably is an objective one, that is, Tribunals must as industrial juries determine the way in which a reasonable employer in those circumstances in that line of business would have behaved. There is a band of reasonable responses. The Tribunal must determine whether the employer’s action fell within a band of reasonable responses. Iceland Frozen Foods Limited v Jones

[1983] ICR 17

. (Approved by the Court of Appeal in Post Office v Foley, HSBC Bank plc (formerly Midland Bank plc) v Madden

[2000] IRLR 827

. The range of reasonable responses test (the need for the tribunal to apply the objective standards of the reasonable employer) must be applied to all aspects of the question whether an employee was fairly and reasonably dismissed. Sainsbury’s Supermarkets Ltd v Hitt

[2003] IRLR 23

. I bear that in mind and apply that test in considering all questions concerning the fairness of the dismissal. In determining the reasonableness of an employer’s decision to dismiss, the tribunal may only take account of those facts (or beliefs) which were known to the employer at the time of the dismissal.

[53]Whether or not the employer acts fairly depends on whether in all the circumstances a fair procedure, falling within the range of reasonable responses, was adopted. The form and adequacy of a disciplinary enquiry depends on the circumstances of the case. What is important is that, in the interests of natural justice, the employee can be given a chance to state his or her case in detail with sufficient knowledge of what is being said against him or her to be able to do so properly. Bentley Engineering Co Limited Mistry

[1979] ICR 2000

[54]In deciding whether the dismissal is fair the Tribunal must consider whether summary dismissal falls within the band of reasonable responses, taking into account all the surrounding circumstances, the employer’s practice, the contract of employment and any definitions of gross misconduct contained therein, the knowledge of the employee, the seriousness of the offence. What conduct amounts to gross misconduct will depend on the facts of the individual case. Generally gross misconduct is conduct which fundamentally undermines the employment contract, is a deliberate and wilful contradiction of the contractual terms or amounts to gross negligence. The current ACAS code gives examples of gross misconduct which includes a serious breach of confidence.

[55]The tribunal has considered and applied Sections 118-124 Employment Rights Act 1996. It notes in particular:-a. Section 122(2) under which a tribunal may reduce a basic award where the employee’s conduct before dismissal makes a reduction just and equitable;

b. Section 123(1) whereby the tribunal is directed to make a compensatory award in such an amount as it considers just and equitable in all the circumstances;

c. Section 123(6) whereby a tribunal should reduce the compensatory award by such proportion as it considers just and equitable where the dismissal was to any extent caused or contributed to by any action of the claimant.

[56]As to contributory conduct the tribunal notes the EAT’s decision in Nixon v Ross Coates Solicitors and anor EAT 0108/10 which noted that s112(2) allowed ‘any conduct of the complainant before the dismissal’ to be taken into account when assessing the basic award. However, for the purposes of s123(6) and the compensatory award, only conduct that ‘caused or contributed’ to the dismissal could be counted.

[57]In Nelson v BBC (No2)

[1979] IRLR 346

the Court of Appeal said that three factors must be satisfied if the tribunal are to find contributory conduct:-• the relevant action must be culpable and blameworthy

• it must have actually caused or contributed to the dismissal

• it must be just and equitable to reduce the award by the proportion specified

[58]In Gibson v British Transport Docks Board

[1982] IRLR 228

Browne-Wilkinson stated that what has to be shown is that the conduct of the claimant contributed to the dismissal. If the claimant has been guilty of improper conduct which gave rise to a situation in which he was dismissed and that conduct was blameworthy, then it is open to the tribunal to find that the conduct contributed to the dismissal

[59]The tribunal has considered and where appropriate applied the authorities referred to in submissions. Determination of the Issues

[60]This includes, where appropriate, any additional findings of fact not expressly contained within the findings above but made in the same manner after considering all the evidence.

[61]The claimant was dismissed and the effective date of termination was 7 March 2024.

[62]The tribunal has considered the reason for the dismissal with care. The tribunal notes the evidence in chief of Mr Eassom, as set out at paragraph 44 above, and the reasons set out in the dismissal letter, as set out at paragraph 43 above. The dismissing officer made it very clear in his evidence before the tribunal that the reason for dismissal was that the claimant had admitted making noises in the workplace, as demonstrated at the disciplinary hearing, which were embarrassing, which the claimant accepted were inappropriate and juvenile and that a work colleague SM had been offended by those noises. The dismissing officer was unable to define what the noises were. He did not make any finding that the claimant had made monkey noises or that his conduct was related to SM’s race.

[63]The dismissal letter is inconsistent with the evidence of Mr Eassom. It refers to the claimant making Michael Jackson voices and making monkey noises and incorrectly states that the claimant admitted to that. It also refers to the making of a “hee-hee” noise, for which no witness statement has been produced and which was not discussed at the disciplinary hearing.

[64]The tribunal accepts the evidence given by Mr Eassom at the hearing and finds that the reason for the dismissal was conduct in that the respondent held the honest and genuine belief that the claimant had admitted making noises in the workplace, as demonstrated at the disciplinary hearing, which were inappropriate and juvenile and which caused distress to a work colleague.

[65]Conduct is a potentially fair reason for dismissal within s98(1) and

(2) Employment Rights Act 1996.

[66]The tribunal has considered all the circumstances of this case, including those matters referred to in s98(4) Employment Rights Act 1996, to determine whether, in all those circumstances, the dismissal of the claimant for the reason stated was fair or unfair. In deciding whether the decision to dismiss was fair or unfair the tribunal reminds itself that it is not for the tribunal to substitute its view for that of the employer. The question is did the respondent act fairly within the band of reasonable responses of a reasonable employer in dismissing the claimant. Having examined all the evidence the tribunal finds: 66.1. the respondent did conduct a reasonable investigation of the alleged misconduct. The investigator was independent, played no part in the decision to dismiss. Relevant witnesses were interviewed. At the end of the day the dismissing officer made his decision purely on the admission of the claimant at the disciplinary hearing that he made inappropriate and juvenile noises as demonstrated at that hearing. No further investigation of the actual conduct was needed; 66.2. However, further investigation was needed of the dismissing officer’s decision that the admitted conduct caused distress to the work colleague SM. SM made it clear during the investigation process that he was offended by the noises made by the claimant because they were directed at him, that the claimant mimicked Michael Jackson near to him because he, SM, was black, and that the claimant had made monkey noises. There was no finding by Mr Eassom that the claimant had done any of those things. Mr Eassom did not question or investigate whether SM was offended simply by the making of the admitted inappropriate and juvenile noise; 66.3. the dismissing officer had reasonable grounds following a reasonable investigation that the claimant was guilty of the conduct complained of, namely the admitted conduct of making the so-called “embarrassing noise” as demonstrated by the claimant at the disciplinary hearing. The respond

[67]In deciding whether dismissal fell within the band of reasonable responses of a reasonable employer faced with similar circumstances the tribunal notes that: 67.1. The Statement of Terms and Conditions ( see paragraph 15 above) lists non-exhaustive examples of gross misconduct including: ix. Sexual, racial or disability discrimination, harassment or bullying. 67.2. the dismissing officer made no finding that the claimant had directed his inappropriate conduct at the complainant SM. There was no finding of race discrimination. The dismissing officer relied on the fact that SM thought that the inappropriate conduct, as described by him during the investigatory meetings was directed at him. There was no satisfactory evidence that the admitted conduct of the claimant was directed at SM; 67.3. in essence the misconduct of the claimant was inappropriate and juvenile conduct in the workplace. There was no satisfactory evidence before the dismissing officer that that particular admitted conduct was offensive to SM, or caused him distress. There was no satisfactory evidence before the dismissing officer that the claimant had, by making those noises, engaged in bullying or harassment. The claimant gave clear evidence, which was not contradicted, that he had worked with SM for a long time and SM had never told him that he found this inappropriate and juvenile behaviour offensive. There was no evidence that the claimant was aware that such inappropriate and juvenile behaviour was gross misconduct which could lead to summary dismissal. Whereas the tribunal accepts the respondent’s assertion that, having adopted a zero tolerance policy of bullying and harassment and discrimination in the workplace, it is for the respondent to implement it as they see fit, it is reasonable to expect the respondent to ensure that each employee is aware of that policy, and aware that any breach of the bullying and harassment policy could lead to summary dismissal, without any prior warnings. There is no satisfactory evidence that the claimant was aware of or given any training on the zero tolerance policy. Mr Eassom did not investigate the trade union’s assertion that the claimant had not taken part in the colleague code sessions. There is no satisfactory evidence that the claimant received a copy of the Bullying Harassment and Discrimination Policy or that he received any training in it; 67.4. The evidence before the investigating and dismissing officer was that the behaviour of the claimant, as admitted at the disciplinary hearing, had been going on for a number of years and work colleagues were engaged in similar conduct. The tribunal refers in particular to the evidence of CH (paragraph 28 above) and the evidence volunteered by WP (see paragraph 29 above). The claimant did not receive any warnings from his line managers that his conduct was unacceptable. Mr Eassom did not investigate the claimant’s assertion that this was part of the work culture in which employees joked about to relieve the boredom. Mr Eassom did not ask any team leaders whether this was correct and, if so, what had been done to stop it. It may be that the zero tolerance policy was introduced to stop this kind of behaviour, but as stated above, it was reasonable for the employer to ensure that the adoption of the zero tolerance policy and its possible consequences for future employment were known to all the employees; 67.5. The claimant had a clean disciplinary record. 67.6. The dismissing officer did not consider any penalty other than dismissal

[68]In all circumstances the tribunal is satisfied and finds that the claimant was not aware of the company's zero tolerance policy in relation to inappropriate and juvenile behaviour in the work place. He had been engaging in this type of juvenile behaviour for some time and had not received any warnings that such behaviour was unacceptable and could lead to disciplinary action including dismissal. 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.

[69]The claimant was unfairly dismissed.

[70]As to contributory conduct the tribunal notes that ‘any conduct of the complainant before the dismissal’ is to be taken into account when assessing the basic award. However, for the purposes of the compensatory award, only conduct that ‘caused or contributed’ to the dismissal could be counted (see paragraph 56 above).

[71]Any reduction must relate to conduct before the dismissal. Therefore, the claimant’s conduct at the appeal hearing cannot be taken into account in the assessment of contributory conduct. This can be addressed further at the Remedy Hearing.

[72]The claimant was guilty of culpable and blameworthy conduct – the inappropriate and juvenile noises which were annoying to a number of employees and could have been offensive and humiliating to a number of employees, including SM. On balance the tribunal determines that it is appropriate to discount the compensatory award by 50%. It is not just and equitable to reduce the basic award further by reason of the claimant raising his voice at the disciplinary hearing. He quickly apologised for the raising of his voice. The tribunal does not consider that the mere raising of a voice amounts to aggressive behaviour. The tribunal would agree it is unprofessional but the claimant was genuinely upset. The tribunal would therefore reduce the basic award by the same amount – 50%.

Remedy

[73]Following the announcement of the above decision there was a remedy hearing. Consideration was given to the Schedule of Loss prepared by the claimant in advance of the hearing. Neither party made any submissions in relation to any claimed increase or decrease to the amount of the awards other than the 50% reduction to the basic and compensatory awards as previously determined.

[74]The parties agreed that the claimant was entitled to a Basic Award in the sum of £4,140.00, reduced by 50%, to give a total Basic Award of £2,070.00.

[75]The tribunal was satisfied that the claimant had mitigated his loss and that his loss of earnings was restricted to the period of 8 March 2024 to 9 December 2024, following which the claimant attained gainful alternative employment and his loss of earnings ceased. The claimant’s net weekly wages were agreed to be £419.80. His compensatory award is therefore £8,541.05 calculated as follows: 75.1. Loss of earnings 08.03.24 – 09.12.24 39.5 weeks @ £419.80 £16,582.00 75.2. Loss of statutory rights £ 500.00 75.3. Total £17,082.10 Less 50% £ 8,541.05 Approved by