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Tribunals: handling the grievance process with difficult employees

Written by: James Hockley
Published on: 14 Jul 2022
Category:

justice Image: © makibestphoto / Adobe Stock

Image: © makibestphoto / Adobe Stock

Dealing with employees who have lodged a grievance is not easy. But what happens when an employee brings a claim, and is difficult and troublesome? How should the employer act?

That was the question answered in Hope v British Medical Association, a recent Employment Appeal Tribunal (EAT) case.

The tribunal ultimately ruled that the dismissal of an employee who brought numerous “frivolous and vexatious” grievances was fair because he refused to progress or withdraw the claims, or attend a grievance hearing.

What happened in this case?

The claimant, Mr Hope, was employed by the British Medical Association between June 2014 and May 2019. By February 2019, Hope had raised around seven grievances and said he wished to discuss these grievances informally with his line manager.

However, as the grievances related to more senior managers, his line manager did not have authority to resolve them.

Hope refused to progress any of the grievances to a formal stage. Instead, he sought to reserve his right to do so at a future date while not withdrawing the grievances. However, the employer treated the complaints as formal and a grievance hearing was scheduled to take place in March 2019. 

The claimant refused to attend the hearing despite being informed that attendance was a reasonable management instruction. He was also told that if he persisted with filing frivolous grievances, this may be treated as a disciplinary issue.

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

The disciplinary chair concluded that each of the allegations was made out and Hope was dismissed for gross misconduct. He brought a claim for unfair dismissal. 

The Employment Tribunal found that the dismissal was fair. Hope then appealed to the EAT.

What did the EAT decide?

Hope argued that the Employment Tribunal 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 that the Employment Tribunal 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 the Employment Tribunal’s decision was perverse and his conduct did not justify dismissal.

The EAT held that the British Medical Association had not raised “contractual gross misconduct” as a reason for the dismissal and, on that basis, a contractual analysis was not required. The EAT disagreed with 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 to consider, but it is not the only one and not relevant in every situation. In this case, the correct question to ask was the statutory one: namely, whether the employer had acted reasonably in treating the conduct as a sufficient reason to dismiss; the tribunal held it had.

The EAT also concluded that the Employment Tribunal’s decision was not perverse. Importantly, the EAT 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 Hope to raise numerous complaints and expect to leave them unresolved. His failure to attend the grievance hearing could also be regarded as wrongdoing in the circumstances. 

Therefore, the Employment Tribunal was entitled to conclude that the dismissal fell within the band of reasonable responses of a similarly sized employer. Hope’s appeal was dismissed.

What does this mean for employers?

This decision confirms what many employers already know: specifically, that a dismissal is fair if it complies with the requirements of section 98 of the Employment Rights Act 1996 – there is nothing that requires the employer to always show contractual gross misconduct or negligence when affecting a dismissal on the grounds of conduct. 

However, this does not mean that dismissing an employee for misconduct is straightforward. 

Statutory questions must still be addressed, 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 before taking a decision to discipline, and potentially dismiss, an employee. 

For example, if a grievance relates to an allegation of discrimination or qualifies as a whistleblowing disclosure, an employee may have protections against victimisation. If either of these two protections apply, and the employer subjects an employee to a detriment (such as initiating a disciplinary process against the employee) or dismisses the employee, the employer may receive an Employment Tribunal claim for detriment or automatic unfair dismissal. 

Importantly, neither of these claims require an employee to have a qualifying period of service to bring a claim. The compensation available, unlike for standard unfair dismissal, is uncapped. While employers should tread carefully when it comes to handling grievances and considering disciplinary action, this decision shows that the raising of multiple frivolous grievances and refusing to progress them formally, or withdraw them so that they cannot be resolved, may justify dismissal. 

Employers may wish to update their disciplinary rules and policies to specify that such action will be treated as gross misconduct. 

An employer should also make the employee aware, as the British Medical Association did in this case, that if the employee decides to continue with such a course of conduct, it threatens to breach the implied duty of trust and confidence, and may lead to a formal disciplinary process.