A recent case in the Employment Appeal Tribunal (EAT), Hope v British Medical Association (BMA), shows that employers don’t need to pander to difficult employees. The tribunal ruled that the dismissal of an employee who brought numerous “frivolous and vexatious” grievances was fair because the employee refused to progress or withdraw his claims or attend a grievance hearing.

The claimant, Mr Hope, was employed by the BMA between June 2014 and May 2019. By February 2019, he had raised several grievances and said he wished to discuss them informally with his line manager. However, as the grievances related to more senior managers, his line manager did not have authority to resolve them. Mr Hope refused to progress the grievances to a formal stage, and sought to reserve his right to do so at a future date. 

However, the BMA treated the complaints as formal; a grievance hearing was scheduled for March 2019. The claimant refused to attend, despite being informed that attendance was a reasonable management instruction. He was also told that if he persisted in filing frivolous grievances, it may be treated as a disciplinary issue.

A breach of contract amounting to gross misconduct may be one factor, but it is not the only one and is not always relevant

In April 2019, Mr Hope was invited to attend a disciplinary hearing to respond to three allegations: that he had submitted numerous frivolous grievances against two senior managers; had failed to follow a reasonable management instruction to attend the grievance hearing, and that there had been a fundamental breakdown of the working relationship between him and senior management.

The disciplinary chair concluded that each of the allegations was made out and Mr Hope was dismissed for gross misconduct. He brought a claim for unfair dismissal. The Employment Tribunal (ET) found that the dismissal was fair. Mr Hope appealed to the EAT.

THE APPEAL

Mr Hope argued that the ET had made an error in failing to consider whether the alleged misconduct was capable of amounting to gross misconduct in the contractual sense. He suggested it should have considered whether his conduct amounted to either a “deliberate and wilful contradiction of the contractual terms” or “very considerable negligence”. He also argued that the tribunal’s decision was perverse, and his conduct did not justify dismissal.

The EAT held that the BMA had not raised “contractual gross misconduct” as a reason for the dismissal. On that basis, a contractual analysis was not required. It disagreed with Mr Hope’s submission that whenever the label “gross misconduct” is used, an analysis of whether the conduct amounts to either a wilful contradiction of the contract or gross negligence is required. 

A breach of contract amounting to gross misconduct may be one factor, but it is not the only one and is not always relevant. In this case, the correct question was the statutory one – namely, whether the employer had acted reasonably in treating the conduct as sufficient reason to dismiss. The EAT held that it had. It also concluded that the ET’s decision was not perverse. Importantly, it noted that the proper purpose of grievance procedures is to resolve concerns, not to act as a repository for complaints to be left unresolved and resurrected at will. It was unreasonable for Mr Hope to raise numerous complaints and expect to leave them unresolved. His failure to attend the hearing could also be regarded as wrongdoing in the circumstances, and the ET was entitled to conclude that the dismissal fell within the band of reasonable responses of a similarly sized employer. The appeal was dismissed.

IMPLICATIONS FOR EMPLOYERS

This decision confirms that a dismissal is fair if it complies with section 98 of the Employment Rights Act 1996. There is nothing that requires an employer to always show contractual gross misconduct or negligence when effecting a dismissal on the grounds of conduct. However, there are still statutory questions to address, including whether the misconduct is sufficient to justify dismissal and whether a fair dismissal procedure has been followed. Failure to satisfy both elements puts an employer at risk of an unfair dismissal claim.

An employer should also consider the substance of a grievance and the employee’s actions in raising it. For example, if it relates to an allegation of discrimination or qualifies as a whistleblowing disclosure, an employee may have protections against victimisation.  

While employers should tread carefully when handling grievances, this decision shows that raising frivolous grievances and refusing to progress them formally or withdraw them, may justify dismissal. Employers may wish to update their disciplinary rules and policies to specify that such action will be treated as gross misconduct. 

James Hockley is an associate at employment law specialists BDBF LLP