362: Can employers dismiss someone for bringing numerous grievances?
Employers are usually keen to listen to the concerns of their workforce, however there comes a point where employees can be dismissed for raising excessive, unfounded grievances.
Employers must always tread carefully when considering disciplinary action against an employee who has raised any concerns, particularly given the possibility of whistleblowing or discrimination claims. However, Hope v British Medical Association (BMA) provides reassurance that in some circumstances it may be appropriate to take disciplinary action where an employee is raising vexatious complaints or abusing grievance procedures.
In this case the the Employment Appeal Tribunal (EAT) has upheld an Employment Tribunal decision that an employee was fairly dismissed for bringing numerous grievances, refusing to formally progress them, and failing to attend a grievance meeting.
Mr Hope was employed by the BMA as a Senior Policy Adviser. Between January 2018 and February 2019, he raised around seven grievances concerning his treatment by senior management. It became difficult for the BMA to deal with these grievances because Mr Hope wanted to keep them informal, declined to attend meetings to resolve them, and refused to progress to a formal process. He also refused to withdraw the grievances because he wanted to retain the ability to pursue them. Eventually the BMA invited Mr Hope to a formal grievance meeting which he refused to attend. His grievances were considered in his absence and dismissed. The chair of the grievance panel concluded that Mr Hope’s behaviour in keeping the grievances informal and refusing to attend the meeting was frivolous and vexatious, and that his repeated instigation of grievances without following them through was an abuse of process. Following disciplinary proceedings, Mr Hope was dismissed for gross misconduct. He then brought a claim of unfair dismissal.
The Employment Tribunal held that Mr Hope’s dismissal was fair, concluding that the BMA had carried out a reasonable investigation and disciplinary procedure, and that it was within the band of reasonable responses available to an employer to treat his behaviour as a sufficient reason for dismissal.
Mr Hope appealed to the EAT, arguing that the Employment Tribunal had not properly considered whether his behaviour met the definition of gross misconduct, and had wrongly characterised his non-attendance at a grievance meeting as misconduct. The EAT dismissed his appeal. Whether a dismissal for misconduct is regarded as fair for the purposes of unfair dismissal legislation depends on whether, given all the relevant circumstances, the employer acted reasonably in treating that conduct as a sufficient reason for dismissal. It does not depend on characterising the conduct as gross misconduct. Whether conduct amounts to gross misconduct is a separate contractual question relevant to deciding a claim of wrongful dismissal, although it is also one of the circumstances that can be taken into account when determining an unfair dismissal claim. Here, the EAT held, it was clearly permissible for the Employment Tribunal to have concluded that Mr Hope’s employer had acted within the range of reasonable responses in regarding his repeated attempts to subvert the grievance process as vexatious and a sufficient reason for dismissal.
Employers may be pleased to note that the EAT also helpfully observed in its judgment that employers cannot be expected to leave employees’ grievances unresolved indefinitely, as this will fetter the ability to deal with concerns promptly and in a way that minimises the risk to employees’ well-being.