Does the “last straw” have to be a significant breach in a constructive dismissal claim?
In the case of Marshall v McPherson Limited, the Employment... Read More
Was it fair to dismiss an employee who raised numerous grievances?
The Employment Appeal Tribunal (“EAT”) in the case of Mr M Hope v British Medication Association has recently considered whether it was fair to dismiss Mr Hope (“the Claimant”) for gross misconduct after he raised numerous grievances which he refused to progress with or withdraw.
Background
The Claimant worked as a Senior Policy Adviser for the British Medical Association (“the Respondent”). During his employment, he brought numerous grievances against senior managers. Some of these grievances concerned the failure of managers to include him in meetings he felt he should be attending and grievances about earlier grievances. The grievances could not be resolved informally and the Claimant refused to progress any of the grievances he raised to the formal stage, nor did he withdraw his grievances, but instead wanted to try and retain his ability to progress his grievances should he decide to do so.
The Respondent nevertheless decided to hold a grievance hearing which the Claimant refused to attend despite being told that attendance was considered to be a reasonable instruction. By the time of the grievance hearing which proceeded in his absence, the Claimant had raised around seven grievances. The Claimant’s grievances were not upheld. The Respondent considered that the Claimant’s conduct in bringing numerous vexatious and frivolous grievances and failing to comply with a reasonable management instruction to attend the grievance hearing amounted to gross misconduct. The Claimant was summarily dismissed from his employment on 24 May 2019 following a disciplinary hearing to consider those allegations.
The Law
Section 94 of the Employment Rights Act 1996 (“ERA”) provides for the right for an employee not to be unfairly dismissed by their employer. An employer has to establish a potentially fair reason for dismissal under section 98(1) ERA and whether a dismissal is fair or unfair depends on whether the employer acted reasonably or unreasonably in deciding to dismiss the employee for that reason (section 98(4) ERA).
To be potentially fair, the reason or principal reason for the dismissal must be for at least one of the five potentially fair reasons for dismissal as detailed under section 98 ERA. These reasons are: capability or qualifications, conduct, redundancy, breach of a statutory duty or restriction and “some other substantial reason.” Under section 98(2)(b) ERA, it is potentially fair to dismiss an employee if it “relates to the conduct of the employee,” this may be either a single act of serious misconduct or a series of less serious acts.
Decision
At first instance, the Employment Tribunal (“ET”) dismissed the Claimant’s claim for unfair dismissal, noting that it was reasonable for the Respondent to find the Claimant’s actions vexatious and unreasonable. Additionally, the ET held that the Respondent had proved its reasons for dismissal, its disciplinary process was fair and reasonable and dismissal was a sanction within the range of reasonable responses available. The Claimant then appealed this decision to the EAT contending that the ET had failed to consider whether the conduct relied upon by the Respondent was capable of being gross misconduct in the contractual sense and asserting that the ET’s conclusions were perverse.
The EAT further dismissed the Claimant’s appeal. The Judge upheld the ET’s conclusions and held it had not erred in its conclusions. The EAT concluded that the ET was entitled to conclude that the employer had acted reasonably in treating the Claimant’s conduct as a sufficient reason for dismissal in the circumstances.
Comment
This case highlights that even where an employee raises a number of grievances, this does not preclude the employee from a potential dismissal situation where those grievances are raised in bad faith, unreasonably and vexatiously. The raising of grievances will still be regarded as conduct and employees should ensure they act and continue to act appropriately in the grievance process to maintain an appropriate and professional standard.