Employment Law Cases

Hope v British Medical Association

An employee’s dismissal for using a grievance process in a frivolous and vexatious manner was fair.

Background

Mr Hope, a senior policy adviser at the BMA, brought a number of grievances against senior managers, including grievances about grievances. The first one was partially upheld on appeal and centred around whether an email from him making comments on a report. However, he raised further grievances about other minor matters such as being excluded from meetings, but he refused to progress any of them to the formal stage, instead seeking to retain the ability to do so, and neither did he withdraw the grievances. He was threatened with disciplinary action if he carried on raising grievances – and he raised an informal complaint about that. He was again warned that if his grievances were seen as frivolous, it could result in disciplinary action. He then raised a grievance about that warning. A formal grievance hearing was held which Mr Hope refused to attend; despite being told that the request to do so was considered to be a reasonable management instruction. His grievances were not upheld and considered to be frivolous, vexations, disrespectful and insubordinate. The BMA called Mr Hope to a disciplinary meeting saying they considered his conduct to amount to gross misconduct in that he had brought numerous vexatious and frivolous grievances and had refused to comply with a reasonable management instruction to attend the meeting. It also considered that there had been a fundamental breakdown in Mr Hope’s working relationships. He was dismissed. A tribunal held his dismissal was fair. Mr Hope appealed, his principal argument being that the tribunal was wrong to construe his actions as gross misconduct because they were neither deliberate wrongdoing nor gross negligence.

EAT decision

The appeal was dismissed.

The EAT started by noting that ERA, s. 98(2) refers to ‘conduct’ rather than misconduct as a potentially fair reason, and that it needs not be reprehensible or culpable to justify dismissal. ‘Gross misconduct’ however is a contractual concept relevant to entitlement to dismiss summarily and hence to the contractual entitlement to notice pay, relevant to a wrongful dismissal claim but not directly relevant to determination of whether there has been an unfair dismissal.

The test for determining fairness under ERA, s. 98(4) involves looking at all the circumstances, which might in some misconduct cases include the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct. But that is not to say that whenever the label of ‘gross misconduct’ is used, a contractual analysis as to whether the conduct equated to a wilful contradiction of the contract or gross negligence is required. The contractual context is merely one of the circumstances weighed in the balance when considering the reasonableness of treating the conduct as a sufficient reason to dismiss.

Mr Hope’s claim was not one of wrongful dismissal and the BMA did not rely on any contractually stipulated act as amounting to gross misconduct. The tribunal was entitled to conclude that the BMA had acted reasonably in treating the reason for dismissal, namely Mr Hope’s conduct, as being a sufficient reason to dismiss in all the circumstances.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2021/2021-000187.html

Comment

This is a case which will be met with some elation by employers, who seem to be weighed down with grievances at the moment. Whilst it is fact specific, and notable that Mr Hope did not want to progress grievances, the constant raising of grievances found to be vexatious and frivolous, destroying the trust and confidence in a relationship and a refusal to attend a grievance hearing will be a frequent scenario in business at the moment. This case shows that even Croydon employment tribunal, which has had a reputation for being pro employee, felt that enough was enough and that these actions amounted to gross misconduct.

However, it was key that there had been a finding that the grievance was frivolous and vexatious and so those hearing grievances need to be very firm in their findings on this point. Also care must be taken if the grievance relates to allegations of discrimination as taking action can be a stand-alone claim of victimisation – although an employer can defend this if the grievance was found to be vexatious.