The Manchester Employment Tribunal has recently published its judgment in relation to an unfair dismissal claim brought by Mr Zawadzki against his former employer, The Co-operative Group.
The claim arose from allegations that Mr Zawadzki made high-pitched “hee‑hee” noises reminiscent of Michael Jackson and racist “monkey noises” towards a colleague.
The tribunal found that the dismissal lacked sufficient justification and did not fall within the band of reasonable responses. Mr Zawadzki’s claim of unfair dismissal therefore succeeded, and he was awarded over £10,000 in compensation.
Our Employment Lawyers explore the recent case and key lessons for employers.
The Facts
- Mr Zawadzki was employed as a warehouse operative from 7 December 2015 to 7 March 2024.
- In December 2023, a colleague (named SM), who is black, reported to management that Mr Zawadzki had been impersonating the singer Michael Jackson by raising his voice in a very high-pitched tone and had made monkey noises.
- During an investigation meeting, Mr Zawadzki denied impersonating Michael Jackson and denied making monkey noises. He admitted to making grunting and moaning noises and agreed that these could be described as “orgasmic” and that this behaviour was not appropriate in the workplace. He firmly denied any racist behaviour and stated that he never intended to bully or cause distress to SM. He also said that in the 18 months that he had worked with SM, SM had never given him any sign that he had been upset or harmed.
- The company did not hold any further investigation meetings with SM.
- Mr Zawadzki was invited to a disciplinary hearing on 29 February 2024. The invite letter confirmed that the purpose of the allegation was to consider the allegation of gross misconduct, namely that he had breached the company’s bullying, harassment and discrimination policy, specifically by making inappropriate comments to a colleague, causing hurt and distress.
- At the disciplinary hearing, Mr Zawadzki was asked to make the noise which he admitted to making, which the dismissing officer described as “embarrassing”. Mr Zawadzki accepted that it was inappropriate and juvenile to make the noise in the workplace, but that if he heard those noises, he would not think they were directed at him or that they were racist. He explained that he was not the only one to make those noises, that he had not received any training on the bullying and harassment policy and that his intention was never to make anyone feel bad.
- Mr Zawadzki was dismissed without notice. He appealed that decision. However, the appeal hearing did not substantively progress, and so the previous decision to dismiss was confirmed.
The Tribunal's Key Findings
The Employment Tribunal concluded that Mr Zawadzki’s dismissal was unfair. In reaching this conclusion, the judge noted:
- There was no satisfactory evidence that Mr Zawadzki’s admitted conduct was directed at SM.
- There was no satisfactory proof that Mr Zawadzki’s admitted conduct caused offence to SM or that SM felt distressed by it.
- Mr Zawadzki and SM had worked together for a long period, during which SM had never previously flagged any issues regarding the behaviour as inappropriate or offensive.
- Mr Zawadzki had not been made aware of a zero-tolerance stance on juvenile behaviour in the workplace, nor was he given any prior warnings that his conduct was unacceptable, despite this going on for a number of years and despite other work colleagues engaging in similar conduct.
- The dismissing officer did not consider any penalty other than dismissal.
Lessons for Employers
Employers should use this decision as a reminder to apply disciplinary procedures carefully, with clear policies, fair investigative practices and ensure that any decision is backed up with evidence.
In particular, employers should ensure:
- The impact is evidenced - Before dismissing, employers should ensure there is clear evidence that the behaviour caused actual offence, harm, or workplace disruption, not just that it was odd or juvenile.
- Matters are dealt with promptly - Disciplinary action becomes harder to justify if the allegedly offensive behaviour went unchallenged over time.
- Policies are effectively communicated - Zero‑tolerance policies only work if employees are made aware of them and, where appropriate, relevant training is provided.
- The response is proportionate - Dismissal may be unjustified if the conduct, though inappropriate, is not severe and was not shown to have a genuine impact on others, especially if others have not been disciplined for the same issues.
- Procedural fairness – Employers should document clear disciplinary processes, ensure warnings or informal discussions occur where appropriate, and ensure that appropriate investigation occurs, following up on matters that may need further clarification.
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