Any hope for employees?
A recent case provides a timely reminder about the importance of adherence to grievance procedures to bring complaints to a prompt resolution.
This case concerned Mr Hope, a senior policy adviser at the BMA, who brought several grievances against managers, including matters such as being excluded from meetings. He only wished to raise them informally with his line manager, even though they could only be resolved by senior managers. He refused to progress his grievances to a formal stage but wanted to retain the ability to do so later and refused to withdraw them. He was threatened with disciplinary action if he continued to raise grievances in this way. This prompted him to raise a further grievance about the warning communication he received.
A formal grievance meeting was held, which Mr Hope refused to attend, despite being told that the request to do so was a reasonable management instruction. The meeting went ahead in his absence, where his grievances were not upheld and considered frivolous, vexatious, disrespectful, and insubordinate.
BMA then invited him to a disciplinary hearing which resulted in his dismissal, with payment in lieu of notice. They considered his conduct amounted to gross misconduct because he had submitted numerous frivolous grievances, failed to follow reasonable management instructions in relation to meeting attendance and there had been a breakdown their relationship. Mr Hope appealed the decision. This was not upheld and he issued an unfair dismissal claim.
The Employment Tribunal (‘ET’) held that the dismissal was fair given the impact of Mr Hope’s conduct and that it fell within ‘the band of reasonable responses of a similarly sized and resourced employer in these circumstances.’
Mr Hope appealed, relying mainly on the argument that the tribunal was wrong to construe his actions as gross misconduct because they were neither deliberate wrongdoing nor gross negligence. He argued the ET failed to assess whether the conduct amounted to gross misconduct with reference to contractual terms. ‘Gross misconduct’ is a contractual term relevant to the entitlement to dismiss summarily and a wrongful dismissal claim. However, Mr Hope was paid notice and made a claim for unfair, rather than wrongful, dismissal. The BMA had not sought to rely on any contractually stipulated acts amounting to gross misconduct and so it was not necessary to determine whether the conduct amounted to gross misconduct. The Employment Appeal Tribunal (‘EAT’) therefore dismissed his appeal and noted that ‘conduct’ rather than misconduct can be a fair reason for dismissal. It therefore considered that the BMA’s dismissal decision was a reasonable response to the numerous vexatious grievances.
Although fact specific, this case confirms that an employee can be dismissed for raising a frivolous or vexatious grievance. This judgment will be welcomed by employers, particularly given the increased number of workplace grievances since the start of the pandemic. It highlights the importance of instigating a proper grievance procedure as the EAT considered that the employer was acting ‘within a range of reasonable responses’ to resolve matters, for example by investigating circumstances and warning of potential disciplinary action. However, employers still need to ensure that they are acting reasonably in all the circumstances when treating conduct as sufficient reason to dismiss. Particular care needs to be taken if the grievance relates to discrimination as this may result in a separate claim.