Employers who are faced with a troublemaker employee raising multiple grievances may be interested to note the December 2021 decision of Hope v British Medical Association in the Employment Appeal Tribunal (EAT).
The employer dismissed the employee on the grounds of gross misconduct after the employee had brought multiple grievances which were considered vexatious and an abuse of the grievance process. The employee brought an unfair dismissal claim which was not upheld in the Employment Tribunal and the subsequent appeal was dismissed in the EAT.
The EAT upheld the decision that it was, in this case, fair to dismiss the employee who had raised multiple grievances and who had refused to progress them in any way.
The particular facts of the case will make any employer groan into their handbooks. The employee raised a total of 7 grievances in his 5 years of employment. He always requested to have his grievances reviewed “informally” which hindered any resolution, as the informal reviews were with staff who did not have sufficient remit to resolve them. He refused to withdraw any of the grievances or to attend any grievance hearings.
The exasperated employer told the employee that if he continued to raise grievances in this manner he would be faced with disciplinary proceedings. The Tribunal judgments obviously do not mention any settlement negotiations that may have taken place during this time, but it is clear that the employer needed a resolution one way or the other; either to hear the grievances to resolve the issues or commence a disciplinary hearing with the possibility of a termination of employment.
A disciplinary hearing was eventually held to respond to allegations that the employee had submitted numerous frivolous grievances, had failed to follow reasonable management instructions to attend a hearing, and that the relationship between the employee and his managers had fundamentally broken down. The allegations were fully investigated during the disciplinary process and were eventually upheld, which permitted the employer to make the decision to dismiss for gross misconduct. A bold move for sure, and not without its risks of litigation which were eventually realised in both Tribunal and EAT hearings.
When reviewing the fairness of this decision, the Tribunal considered the extent of the investigation the employer had carried out as part of the disciplinary procedures. It was held;
to not be unreasonable for the employer to have concluded that the employee’s behaviour was vexatious, unreasonable, and
it was within the bands of reasonable responses for an employer to treat this as a sufficient reason for the dismissal.
In the EAT the employee argued that:
the non-attendance at a grievance hearing should not be considered as misconduct, and
the issue concerned the definition of what constituted gross misconduct, which he claimed should be considered as “deliberate wrongdoings or gross negligence and a wilful contradiction of contractual terms”.
The EAT held this analysis did not apply because the employer had not sought to rely on any contractually stipulated act. The EAT also made clear that his failure to attend a grievance hearing was just one of several reasons that the employer was relying on to made the decision to dismiss.
The EAT quite helpfully reminded us that the purpose of a grievance procedure is to resolve concerns. Grievances should not be held onto by an employee, left unresolved to be resurrected at the employee’s volition.
It is never straight forward for an employer to dismiss an employee for misconduct, especially when there have been no previous formal warnings. The ACAS Code of Practice on Disciplinary and Grievance Procedures reminds us of the importance of following a fair disciplinary process in all circumstances, and states that some acts of gross misconduct can be so serious that they may call for a dismissal without notice for a first offence. It is therefore paramount to ensure a thorough and transparent disciplinary process is always followed before dismissing for gross misconduct and to make clear that the employer can justify their decision with a sufficiently detailed paper trail.
Employees who raise multiple grievances must ensure that they are raising them in good faith with a genuine desire to resolve their complaints. They cannot hold onto their grievances as “trump cards” to protect themselves from having to face management reviews. Employers may wish to update disciplinary rules to specify that abusing the grievance process may be considered an act of gross misconduct, but they also need to ensure that they make every attempt possible to allow for grievances to be heard in a way that best accommodates the employee. Examples can include;
using third party HR consultants to review the matter,
allowing for meetings to be held remotely,
allowing for representations for meetings to be made in writing,
allowing family members or friends to act as companions or offering workplace mediation.
Any disciplinary action that might be taken for an abuse of a grievance procedure must be thorough and transparent and ensure that dismissal is a last resort.
