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When might it be fair to dismiss an employee for bringing "frivolous and vexatious" grievances?

11 February 2022

Employers often have to manage employees who raise multiple complaints, sometimes in an attempt to slow down or disrupt disciplinary procedures. The EAT case of Hope v British Medical Association considers when dismissal for such conduct might be fair. 

Summary of the facts 

The Claimant, Mr Hope, was employed as a senior policy adviser by the British Medical Association. He brought a number of grievances against senior managers, including multiple grievances about not being invited to meetings. The Claimant wanted to deal with the grievances informally with his line manager however informal discussions did not resolve the issues. The Claimant refused to progress any of his grievances to a formal stage but also refused to withdraw them. 

The Claimant was warned that he could face disciplinary action if his grievances were found to be frivolous or vexatious and in response, he raised another grievance. A grievance meeting was arranged and the Claimant was informed that his attendance was a reasonable management instruction. However, the Claimant refused to attend and it was held in his absence. The Claimant's grievance was dismissed and it was found that his conduct was frivolous, vexatious and an abuse of process. 

Following the grievance outcome, the Claimant was invited to a disciplinary hearing. He was accused of gross misconduct for submitting numerous, frivolous grievances and failing to follow a reasonable management instruction. The Claimant was dismissed and subsequently brought a claim for unfair dismissal

The Employment Tribunal

The Employment Tribunal held that the Claimant's dismissal was fair. The Claimant appealed the decision. The Claimant's grounds of appeal were that the Tribunal wrongly concluded that his conduct could be considered gross misconduct and that the Tribunal's findings were perverse. 

The Employment Appeal Tribunal ("EAT")

The EAT dismissed the appeal, and it was held that the Tribunal had not erred in its approach. 

The EAT found that the test for whether dismissal for conduct was fair or unfair under section 98(4) of the Employment Rights Act 1996 was whether in the circumstances, the employer had acted reasonably in treating the conduct as a reason for dismissal. When considering this, the following four stage test should be applied:

1. Did the employer hold a reasonable belief that the Claimant was guilty of the misconduct?
2. Was the belief based on reasonable grounds?
3. Were the reasonable grounds formed on the basis of a fair and reasonable investigation? 
4. Did the Claimant's dismissal fall within the range of reasonable responses?

The EAT held that although the question of whether there had been a breach of contractual obligations amounting to gross misconduct was something that could be taken into consideration when deciding whether the decision to dismiss was reasonable, it would only be one part of the consideration and in this case there was no need to consider the contractual element.  

Comment  

This case highlights that in certain circumstances it is possible to fairly dismiss an employee for bringing repeated, frivolous and vexatious grievances. This will be welcomed by employers who can sometimes feel as though they are in a never ending cycle of grievances. However, it is important to remember that the outcome in this case is fact specific. The Claimant refused to progress or withdraw his grievances, the grievances had been found to be frivolous and vexatious following a hearing and the Claimant had failed to adhere to a reasonable management instruction by failing to attend the grievance meeting. 

Employers should therefore continue to carefully consider the merits of each grievance an employee raises and follow procedure to allow the grievance to be properly considered. Employees raising grievances are likely to be frustrated and this should be kept in mind when considering whether a grievance is genuine or not. It is important to focus on the merits of the grievance rather than the behaviour of the individual and if the grievance is found to be frivolous or vexatious, this should be clearly communicated and documented following the hearing. 

Employers may also find that they can manage multiple grievances submitted by the same employee more efficiently by considering whether the grievance covers a matter already raised. In such cases it is possible to deal with the grievances together. In repeat cases, it may also be helpful to provide the employee with one point of contact as this person will have an overview of the grievances raised and should be able to assess more quickly whether the grievance covers an issue already raised by the employee. 

Author: Katherine Lynch, Solicitor, Employment, Scotland

 

If you need any assistance with regard to the issues raised in this Legal Update please do not hesitate to get in touch.  

Further Reading