The recent Employment Appeal Tribunal (“EAT”) decision of Hope v British Medical Association [2021] UKEAT 2020-000187 upheld an Employment Tribunal’s finding that an employee was fairly dismissed for bringing multiple grievances which amounted to frivolous and vexatious conduct.
The Claimant was dismissed for gross misconduct in May 2019 following a series of grievances about his managers. The grievances were raised informally in line with the company grievance procedure, but when asked whether he would like to take matters further and pursue the grievance formally, the claimant declined. The claimant continued to raise grievances in this manner and was warned by management that if he persisted with grievances in this way he may be subject to disciplinary proceedings. The claimant proceeded to raise an informal concern about this disciplinary threat. He was again told that if the matter couldn’t be resolved informally, it would be referred to a formal process.
By February 2019 the claimant had raised seven grievances. A formal grievance meeting was arranged but the claimant refused to attend. The meeting went ahead without him and concluded that the claimant’s behaviour, in raising repeated grievances without progressing to the formal stage and refusing to attend the grievance meeting amounted to frivolous, vexatious, disrespectful and insubordinate behaviour. Therefore, a disciplinary process was invoked.
A disciplinary hearing found that the claimant had submitted numerous, frivolous grievances; that he failed to follow reasonable management instructions in relation to attendance at meetings; and that there was a fundamental breakdown of the working relationship between the claimant and senior management. Furthermore, the claimant’s actions were found to amount to gross misconduct and he was dismissed. The claimant issued proceedings for unfair dismissal.
The Employment Tribunal held that the dismissal was fair, a decision which the claimant appealed to the EAT. The claimant’s main ground of appeal centred on whether his conduct was gross misconduct. He argued that in concluding that he had committed gross misconduct, the Tribunal should have considered objectively whether his raising vexatious and frivolous grievances was deliberate wrongdoing or gross negligence.
The EAT, rejecting the appeal, considered the terms of s.98 ERA 1996. It held that fairness of a dismissal “depends not on the label attached to or characterisation of the conduct as gross misconduct, but on whether, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee”.
The EAT relied on the four stage analysis of a conduct dismissal in the case of JJ Food Service v Kefil [2013] IRLR 850; namely that (1) the employer must have a genuine belief in the misconduct, (2) it must reach that belief on reasonable grounds, (3) the belief must follow a reasonable investigation and, (4) the dismissal must fall within the range of reasonable responses in the light of that misconduct. On this analysis, the EAT agreed that there is no requirement to determine whether conduct amounts to gross misconduct. The appeal was dismissed.
On the facts of this case the claimant’s repeated frivolous and vexatious grievances amounted to a fair reason for dismissal. However, this case was fact specific and there may well be occasions in which an employee may raise repeated or numerous grievances in an entirely legitimate manner. Therefore, it is important for employers to have effective grievance procedures in place, to review these regularly and to properly manage and hopefully avoid situations of repeated grievances.
If any of these issues impact you or your business, or you have any questions, please get in touch with the authors below, or any member of the Employment Team.
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