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The Employment Appeal Tribunal has held that a dismissal on the grounds of gross misconduct relating to the bringing of multiple vexatious grievances, which were not subsequently withdrawn or pursued, was fair.
In order for the dismissal of an employee who has completed the applicable qualifying period of service (in most cases two years, or just one year in Northern Ireland) to be fair, an employer must be able to show that
- capability or qualifications,
- breach of statutory duty or restriction, or
- some other substantial reason; and
Once an employer has established that they have reasonable grounds for believing that an employee is guilty of misconduct, an Employment Tribunal must then determine whether the employer’s decision to dismiss fell within the ‘range of reasonable responses’.
If a potentially fair reason for dismissal cannot be shown, or the Employment Tribunal does not consider the decision to dismiss to be reasonable, the dismissal will be considered unfair.
The Claimant, Mr Hope, was employed by the British Medical Association (BMA) from 2014, as a senior policy advisor.
Mr Hope brought numerous grievances against senior managers which could not be resolved informally, partly as Mr Hope wished to discuss the grievances with his line manager who did not have authority to assist.
Mr Hope refused to progress any of the grievances or withdraw them. A grievance meeting was scheduled and, as Mr Hope refused to attend, the hearing proceeded in his absence.
The grievances were not upheld.
The BMA considered Mr Hope’s conduct throughout the process to be frivolous and vexatious. Mr Hope’s repeated instigation of the grievance process, without following it through, was thought to amount to an abuse of process and, further, it was considered he had failed to comply with a reasonable management instruction to attend the grievance meeting.
The BMA took disciplinary action against Mr Hope. Following a disciplinary hearing, the decision was made to dismiss Mr Hope on the grounds of gross misconduct.
Mr Hope brought a claim against the BMA, claiming unfair dismissal.
An Employment Tribunal found it was reasonable for the BMA to conclude that Mr Hope’s conduct was vexatious and unreasonable. It was held that the BMA had acted reasonably in dismissing Mr Hope on that basis. As such, the dismissal was found to be fair.
Mr Hope appealed the decision, arguing (amongst other things) that the Employment Tribunal had failed to consider whether the conduct relied upon was capable of amounting to gross misconduct in the sense of being a fundamental breach of contract.
The Employment Appeal Tribunal held that the test for determining whether a dismissal is fair or unfair involves consideration of all of the circumstances. Whether an employee is in breach of a contractual obligation is potentially a relevant consideration. However, it is only one of the circumstances to be taken into account.
It was found the Employment Tribunal had carefully gone through the stages of determining BMA’s
The Employment Appeal Tribunal held the Employment Tribunal was entitled to find BMA had acted reasonably in treating the reason for dismissal, namely the conduct of Mr Hope, as a sufficient reason to dismiss in all the circumstances.
The appeal was dismissed.
This judgment will be welcomed by employers who are faced with numerous ‘troublesome’ grievances from employees. Whilst the outcome of the claim is fact specific, and Mr Hope not wanting to progress or withdraw the grievances was a key factor for consideration, the case shows that the Employment Tribunal may find an employee’s actions in raising frivolous and vexatious grievances amounts to gross misconduct, justifying dismissal.
It is important that employers carefully consider grievances raised by employees and are clear on their findings should they consider grievances to be vexatious in nature. Particular care should be taken if a grievance may be a ‘protected disclosure’ or contain allegations of discrimination/victimisation, as this may take any dismissal beyond fair dismissal legislation and into additional protections under equalities and whistleblowing legislation.
Judgment: click here
Contributors: Danielle Futcher and Sarah Maddock
11 January 2022