Employers often have to manage situations where an employee raises a multiple number of complaints, sometimes as a tactical move to stall a disciplinary process. In some circumstances such complaints can have employers asking whether they are able to treat the matter as a disciplinary issue.

The Employment Appeal Tribunal (the EAT) considered the issue of when an employee raises numerous complaints of a frivolous or vexatious nature and when reaching a decision to dismiss for such conduct might be fair. 

In Hope v British Medical Association, the Claimant, Mr Hope, was employed as a senior policy adviser by the Respondent, 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 he 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. By this stage, the Claimant had raised around seven grievances.

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 the meeting 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. As a result the disciplinary procedure was invoked. The allegations against the Claimant were that:

• the Claimant had submitted numerous frivolous grievances against senior   colleagues;
• he had failed to follow reasonable management instruction in relation to attendance at meetings; and
• there was a fundamental breakdown of the working relationship between the Claimant and the Respondent 

Further to the disciplinary hearing, the Claimant was dismissed and he brought a claim for unfair dismissal. 

The Tribunal hearing the case found that the Respondent had carried out a reasonable investigation and disciplinary procedure and it was not unreasonable in the Tribunal’s view for the Respondent to conclude that the Claimant’s conduct was vexatious and unreasonable and that it was within the band of reasonable responses for the Respondent to treat this as a sufficient reason for dismissal.

The Claimant appealed to the EAT on the grounds that the Tribunal wrongly concluded that his conduct met the definition of gross misconduct (as something that involves either ‘deliberate wrongdoing or gross negligence’) and that the Tribunal's findings were perverse. 

The EAT dismissed the Claimant’s appeal. The EAT noted that the starting point for the gross misconduct point was section 98 of the Employment Rights Act 1996 (the ERA 1996). That section referred to ‘conduct’ as being a permissible reason for dismissal, rather than ‘misconduct’, gross or otherwise.  Whether dismissal by reason of conduct was fair or unfair depended not on the label or characterisation of the conduct as gross misconduct, but on whether, in the circumstances (including the employer’s size and administrative resources), the employer had acted reasonably in treating it as a sufficient reason for dismissing the employee. 

When considering this, the EAT confirmed that 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 it was not necessary for the Respondent to demonstrate that the Claimant had wilfully committed a breach of contract, or alternatively had committed ‘gross negligence’ in order to find that he had committed an act of gross misconduct. The EAT also rejected the Claimant’s perversity arguments. The reason for the Claimant’s dismissal had not been his failure to attend the grievance hearing, that was just one of several reasons relied upon by the Respondent in dismissing him. 

The EAT noted that the purpose of a grievance procedure was to resolve concerns about colleagues or the workplace, it was not a repository for complaints that can then be left unresolved and capable of being resurrected at any time at the behest of the employee. An employer could not be expected to leave concerns unresolved for an unlimited duration as this would destroy its ability to address legitimate concerns promptly and ensure the well-being both of the employee raising the grievance and of those who may be the subject of the grievance. The EAT found that it was clearly permissible for the original Tribunal in this case to consider that the Respondent was acting within the range of reasonable responses in regarding repeated attempts to subvert that purpose as vexatious. 

Points for Employers to take away

We are finding that many employer clients have perhaps even more recently been faced with numerous complaints by employees, especially in light of returning to work following the release of Covid-19 restrictions. 

With that said, and even in light of the decision above, employers are advised to tread carefully in taking a decision to discipline or dismiss an employee in connection with them having raised concerns as this could potentially give rise to a whole host of claims including but not limited to; unfair/constructive unfair dismissal; whistleblowing detriment; discrimination and victimisation. 

The appropriateness of a disciplinary or dismissal decision will very much depend on the facts of the particular situation the employer is faced with however, the EAT’s decision does provide employers with some level of comfort that although employees do have certain rights and protections, where there is a repeated abuse of the grievance process, depending on the circumstances, this may be seen as misconduct and warrant action taken by the employer.

It should be noted, however, that in this particular case, the Claimant refused to progress or withdraw his grievances and they were found by the Respondent to be frivolous and vexatious. The Respondent had asked the Claimant to attend a grievance hearing as a reasonable management instruction given that it had wanted to resolve the Claimant’s outstanding issues. The fact that the Respondent had clearly warned the Claimant that his conduct in raising the numerous complaints could be viewed as vexatious and as an abuse of process together with the Claimant’s failure to comply with the Respondent’s instruction to attend the meeting helped the Respondent’s position and was relevant to the legitimacy of the action the Respondent subsequently took in dismissing the Claimant.  

Employers should therefore continue to carefully consider the merits of each grievance. If a grievance is found to be frivolous or vexatious then this should be communicated to the employee and documented by the employer. 

If an employee raises multiple complaints then it may be worth the employer considering whether a matter raised has already been covered in a previous grievance or complaint and if it is fair and appropriate to do so, it may be possible to deal with the grievances altogether. 

If you have any queries in relation to workplace grievances then please do not hesitate to get in touch with the employment team. 

If you require any more information on this topic please contact Charlotte Holman via charlotte.holman@birkettlong.co.uk or call 01268 244150.