A man sacked from his job in a warehouse after being accused of impersonating Michael Jackson was unfairly dismissed, an employment tribunal has found.
LZ had been accused by a colleague, SM, of making high-pitched “hee hee” noises mimicking the US pop star, the tribunal in Manchester heard. The colleague, who is black, also said LZ made monkey noises that were aimed at him, at The Co-operative Group’s warehouse where they worked.
LZ was employed as a warehouse operative from 7 December 2015 to 7 March 2024 when his employment was terminated by dismissal because of alleged misconduct. The Co-operative had adopted a zero tolerance policy of bullying, harassment and discrimination in the workplace.
At the end of a training session late in 2023 on bullying and harassment at work, SM spoke to his manager and reported that he had been the victim of bullying by LZ, who he thought had been making inappropriate monkey noises that were directed at him. The tribunal judge said SM showed courage to come forward and say he was bullied, and the employer was right to investigate.
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The manager reported this to warehouse shift manager Ms McGrellis, who began an investigation. SM alleged at a meeting on 21 December 2023 that the claimant had been impersonating the singer Michael Jackson, by raising his voice in a very high-pitched tone and had also made monkey noises. Another work colleague had heard the noises and SM said he had been experiencing this for weeks.
Ms McGrellis decided to suspend LZ pending further investigation and wrote to him, explaining that the suspension was because of “an alleged breach of the bullying, harassment and discrimination policy, specifically making inappropriate comments to a colleague causing hurt and distress.”
At a further investigation meeting that month, SM said the noises made by LZ had been directed at him for two years and were racist in intent. But at his meeting, LZ denied his behaviour was racist. He agreed the noises, which included “orgasmic” sounds, were not appropriate in the workplace. On realising that the complaints came from SM, LZ said he was sorry and had wished SM had asked him to stop.
On 6 March, after further investigation, LZ was dismissed by operations manager Mr Eassom for gross misconduct, specifically for breaching the bullying, harassment and discrimination policy, making inappropriate noises towards a colleague, causing hurt and distress.
At the subsequent appeal, LZ became upset and angry and walked out of the hearing.
The tribunal agreed with the Co-operative that the disciplinary process and investigation had been carried out correctly and that it had every right to uphold its policy. However, the judge saw there was a mismatch between the complaint from SM and the reason for the dismissal.
The Co-operative had used LZ’s admission of making silly noises as the reason for dismissal, but he 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. It had ignored the point that he had denied racist intent and was upset at the disciplinary hearing when the allegation of racial bullying was made.
The judge said Mr Eassom did not establish that the claimant had mimicked Michael Jackson near to SM on purpose because SM was black or that he had made monkey noises. Mr Eassom 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. There was no finding of race discrimination and no evidence that LZ was aware that such inappropriate and juvenile behaviour was gross misconduct that could lead to summary dismissal.
The judge wrote: “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 award for LZ amounted to £17,082, comprising lost earnings and loss of statutory rights, but this was reduced by 50% because of his contribution to his own dismissal, so the final compensation was £8,541.
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