Summary: Was a dismissal for gross misconduct relating to the raising of vexatious grievances which the employee refused to either pursue or withdraw, fair?
Yes, says the EAT in Hope v British Medical Association, available here.
Background: If an employee raises a grievance for dishonest or malicious reasons this will be ‘vexatious’ and it may be appropriate to take disciplinary action against that employee. In some circumstances it may be fair to dismiss them. Whether such dismissal is fair will ultimately depend on the facts of each case and whether the employer has acted reasonably in all the circumstances (in compliance with s98 Employment Rights Act 1996 (ERA)).
Facts: Mr Hope, a senior policy adviser with the British Medical Association (BMA), raised seven grievances in just over a year. These were principally about senior colleagues’ failure to involve him in meetings. Mr Hope’s line manager was unable to resolve the grievances as they concerned decisions of more senior managers. However, Mr Hope refused to raise the grievances formally (which would have allowed another manager to resolve them) but also refused to withdraw them. The BMA invited him (as a reasonable management request) to a formal grievance meeting but he failed to attend. The meeting went ahead in his absence and his grievances were not upheld.
The BMA dismissed Mr Hope for gross misconduct for his unreasonable behaviour in bringing vexatious and frivolous grievances and refusing to comply with a reasonable instruction to attend the grievance meeting.
Mr Hope claimed unfair dismissal.
The tribunal found that Mr Hope had been fairly dismissed. The BMA had carried out a fair process and dismissal for gross misconduct was within the range of reasonable responses.
Mr Hope appealed. He said that to be fairly dismissed for gross misconduct his behaviour needed to amount to a breach of contract (either deliberate wrongdoing or gross negligence).
The EAT dismissed the appeal. The BMA was entitled to find that Mr Hope’s vexatious and unreasonable behaviour amounted to gross misconduct and it was fair to dismiss him on that basis. It was not necessary to show that Mr Hope had wilfully committed a breach of contract or ‘gross negligence’ to dismiss him for gross misconduct.
It is good news that an employee’s conduct in raising (and then not pursuing) repeated vexatious grievances can amount to gross misconduct. It does not need to involve a breach of contract or ‘gross negligence’.
Key factors which validated the employer’s finding of gross misconduct were the employee’s:
- refusal to neither progress or withdraw the grievances; and
- non-attendance at the grievance meeting in breach of a reasonable management request.
Practical take-away points are to make sure your procedures clarify that i) the purpose of raising a grievance is to seek a resolution to a genuine complaint and ii) steps in your grievance procedure, such as attendance at meetings, amount to a reasonable management request.
However, take care not to act unreasonably in responding to a grievance. Particularly if the grievance raises allegations of discrimination or a potential protected disclosure Any unjustified less favourable treatment of the employee may result in a claim for victimisation or whistleblowing respectively.
It will still usually be prudent to deal with a vexatious grievance under the grievance procedure (which should comply with the ‘Acas Code of Practice on disciplinary and grievance procedures’). This will put the employer in a good position to defend any subsequent tribunal claim and avoid any uplift in an award for unreasonable failure to follow the Acas Code.