The EAT has upheld a tribunal’s decision that an employee who had raised numerous grievances, which he refused to progress or withdraw, had been fairly dismissed.
THE FACTS
Mr Hope was a senior policy advisor employed by the British Medical Association. He raised seven grievances in just over a year principally about the fact that he had not been invited by senior managers to attend meetings. Mr Hope refused to progress his grievances, but would not withdraw them. He asked to discuss these grievances informally with his line manager, but was told that this could not be resolved via this informal route because the issues concerned more senior managers’ decisions.
When, having raised three grievances about this issue, he was given a deadline to make a decision to withdraw or raise the grievance formally, he raised a grievance alleging this was an abuse of process. He had one meeting with a senior manager at which Mr Hope was told that attendance at meetings was a matter of judgement for managers and it was not appropriate for these to be heard as grievances. This did not resolve the issue. He was warned that persisting with grievances on this issue might be treated as a disciplinary issue.
To try and break the impasse, a formal grievance hearing was set up, which Mr Hope did not attend. The grievance was decided in his absence. The decision maker concluded that Mr Hope’s behaviour, in refusing to progress to a formal grievance where his concerns remained unresolved, was frivolous, vexatious, disrespectful and insubordinate and that Mr Hope’s conduct in refusing to attend the grievance meeting was an abuse of process. The grievance was dismissed and the decision maker decided to invoke the disciplinary procedure.
Mr Hope was dismissed for gross misconduct on the basis he had submitted numerous frivolous grievances against his managers, failed to follow reasonable management instructions in relation to attendance at meetings and there was a fundamental breakdown of the working relationship between him and senior management.
Mr Hope claimed that he had been unfairly dismissed. The employment tribunal held that his dismissal was fair, and he appealed to the EAT. The principal ground of appeal was that the tribunal had erred in failing to consider whether the conduct relied on was capable of amounting to gross misconduct in the contractual sense. The EAT dismissed his appeal.
The following points were important considerations in the tribunal’s and the EAT’s decisions.
- Mr Hope had raised repeated complaints about the legitimate actions of the BMA in respect of who attends meetings.
- He was not prepared to progress or drop these complaints.
- He failed to attend a grievance hearing.
- There was considerable evidence of the impact that this had on his working relationship with one of his managers, which had irretrievably broken down.
- The disciplinary process, including the appeal, was fair.
- In this case the tribunal was not required to consider whether there had been gross misconduct in the contractual sense. Mr Hope’s counsel had argued for this, in reliance on an earlier case, where conduct involving breach of a contractual policy was assessed against a standard of deliberate wrongdoing/gross negligence. In that case, the circumstances required an analysis of whether the conduct relied on involved a breach of contract amounting to gross misconduct. However, there was no such contractual element in Mr Hope’s case, so this analysis was not required. The test of reasonableness in unfair dismissal claims involves a consideration of all the circumstances. The tribunal had done this so there was no error.
WHAT DOES THIS MEAN FOR EMPLOYERS?
Employers should be very careful if they are considering the dismissal of an employee for raising a grievance, particularly (but not only) where a grievance relates to discrimination or may have been raised in the context of a whistle-blowing disclosure. It is worth noting that Mr Hope was not dismissed for raising grievances, as such, but because his position in refusing to progress unresolved grievances formally caused an irretrievable breakdown in the employment relationship. It is helpful that in such circumstances the test is not one of gross negligence as contended for in this case.
Whether an employee can fairly be dismissed for raising multiple grievances will always depend on the specific circumstances.
