Innes Clark: Dismissal for raising grievances – fair or unfair?
An Employment Appeal Tribunal (EAT) case shows that in some circumstances the answers given can be fair.
In Hope v British Medical Association the claimant, a senior policy adviser, raised seven grievances against senior managers in the space of just over a year. The grievances concerned, amongst other matters, the failure of senior managers to include him in meetings which he thought he should be attending. Subsequent grievances were about how earlier grievances had been handled.
The grievances could not be resolved at an informal stage in part because the claimant wished to discuss his grievances informally with his line manager who had no authority to resolve concerns about more senior managers. However, the claimant refused to progress any of the grievances to the formal stage, instead seeking to retain the ability to do so but without withdrawing the grievances. A grievance hearing was fixed but the claimant refused to attend despite being informed that attendance was considered to be a reasonable instruction. The grievance hearing proceeded and the grievances were not upheld.
The employer considered the claimant’s 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. He was dismissed. An employment tribunal found that his dismissal was fair. The claimant appealed.
The Employment Appeal Tribunal (EAT) dismissed the appeal. The employment tribunal had, in the circumstances of this case, been entitled to find the claimant’s conduct in raising the vexatious grievances and refusing to attend the meeting was sufficient to justify his dismissal.
Employers can become understandably frustrated with employees who bring multiple grievances. However, this case should be treated with a high degree of caution. It is very fact-specific and it was key to the tribunal’s findings in this case that the grievances were frivolous and vexatious and that the claimant had refused to progress or withdraw his grievances.
Employers may very well face claims against them in circumstances where either (1) they are not willing to progress a grievance or (2) where they take action against an employee for raising a grievance. In particular, there is the risk of a claim for unfair or constructive dismissal and/or depending on the circumstances, there could also be claims raised against them, for example, under the Equality Act or whistleblowing legislation.
Innes Clark is a partner at Morton Fraser