Employment Appeal Tribunal rules employer was fair to dismiss for vexatious grievances

08 March 2022

Author: Sarah Cochrane
Practice Area: Employment Law

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The Employment Appeal Tribunal considered (Hope –v- British Medical Association (EA-2021-000187) whether dismissal was fair in circumstances where an employee relied upon his employer’s grievance procedure to raise multiple vexatious grievances which he refused to progress or withdraw.

The Claimant was employed by the British Medical Association (“BMA”) as a senior policy adviser and was warned that he could face disciplinary action if he continued to raise ‘vexatious’ and ‘frivolous’ grievances. The Claimant subsequently raised a further grievance in relation to the threat of disciplinary action. A grievance meeting was arranged which the Claimant refused to attend, and this led to the chair of the grievance meeting concluding that the Claimant’s behaviour and refusal to attend the meeting was frivolous and vexatious. The chair also concluded that the Claimant’s conduct in lodging serial grievances without either progressing or withdrawing them was an abuse of the process and his grievances were dismissed. The Claimant was subsequently dismissed for gross misconduct for bringing frivolous and vexatious grievances and abuse of the BMA’s grievance process.

The Employment Tribunal hearing the Claimant’s unfair dismissal claim held that the dismissal was not unfair and the reason for the Claimant’s dismissal had been by reason of his conduct. The Employment Tribunal found that the BMA had carried out a fair procedure and conducted a reasonable investigation. Further, the Employment Tribunal found that the reason for the Claimant’s dismissal was his conduct, including the lodgement of multiple grievances which he was unwilling to progress or withdraw, and that treating his conduct as a sufficient reason for dismissal fell within the band of reasonable responses open to the BMA.

The Claimant appealed the decision on the grounds that the Employment Tribunal had erred in concluding that his conduct could be considered to be gross misconduct and he sought to argue that the Employment Tribunal had failed to consider whether his conduct met the standard of gross misconduct as per section 98 of the Employment Rights Act 1996 (“ERA”). The Employment Appeal Tribunal dismissed the Claimant’s appeal stating that grievance procedures are not a “repository for complaints that can then be left unresolved and capable of being resurrected at any time at the behest of the employee”. The EAT found that the Employment Tribunal had been entitled to hold that the BMA had acted reasonably in treating the Claimant’s conduct as a sufficient reason for his dismissal. The Employment Appeal Tribunal also held that in considering whether or not a dismissal for gross misconduct is fair, it is not always necessary for the Tribunal to carry out a contractual analysis to determine whether or not the Claimant’s conduct amounted to a contractual breach.

The outcome of this case does not permit employers to dismiss employees who are continually aggrieved, but it does highlight the possibility for employers to fairly dismiss employees in circumstances where they lodge multiple vexatious and frivolous grievances which they then subsequently refuse to progress or withdraw. An employer will have to assess whether or not disciplinary action (and in particular dismissal) is appropriate on a case by case basis, but this case does give scope for employers to consider whether repeated abuse of a grievance process may be seen as misconduct.

If you would like further information on the issues discussed in this article, please contact Sarah Cochrane or another member of the Employment Law Team.

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