Dealing with frivolous grievances and unfair dismissal

In light of a recent EAT ruling, Merran Sewell explores whether an employer can dismiss an employee for abusing the grievance procedure

Issue

Every employer should have a grievance procedure in place setting out how an employee might raise concerns in the workplace. There is an implied term in the contract of employment that an employee has the right to have a grievance considered in a reasonable and prompt manner. In fact, if an employer refused to consider a grievance, it might give grounds for the employee to resign and claim constructive dismissal.

However, the right to raise a grievance and have it considered will not prevent an employee from being subject to disciplinary sanction for an abuse of the grievance procedure and this may in some circumstances even lead to dismissal. 

In Hope v British Medical Association, the issue was whether the employer had acted fairly when it had summarily dismissed an employee as a result of his repeated misuse of the grievance process. 

Facts

Mr Hope, a senior policy adviser, raised a number of grievances. Some were complaints about managers, most were related to minor concerns and a few were about the responses to the grievances. He refused to advance his grievances to a formal stage for resolution but would not withdraw them, meaning they remained outstanding. He was warned that if this conduct persisted, he might face disciplinary action which he again complained about as amounting to an abuse of the process. 

In an attempt to clear matters up, a formal grievance meeting was arranged. However, Hope refused to attend. The meeting went ahead and it was decided that the content of his grievances had been frivolous, vexatious, disrespectful and insubordinate. 

It was further considered that Hope’s conduct in refusing to attend the grievance meeting was an abuse of process in respect of which disciplinary proceedings were commenced. At the subsequent disciplinary hearing, Hope was summarily dismissed for gross misconduct. He claimed his dismissal was unfair.

Decision 

It was held that his summary dismissal was fair. He had brought numerous vexatious and frivolous grievances; he had refused to progress these in accordance with the formal grievance policy; and he had failed to comply with a reasonable management instruction to attend a grievance meeting. Hope’s conduct had led to a fundamental breakdown in working relationships. 

Hope’s argument that the dismissal was unfair as his employer had failed to identify which term of the contract he had fundamentally breached was rejected. In assessing fairness there was no absolute requirement to identify a breach of the contract of employment in the sense of stipulating which term had been breached by the employee’s actions.  

The statutory test for unfair dismissal required that all the surrounding circumstances be taken into account to decide if the employer had acted reasonably in treating the employee’s conduct as being a sufficient reason to dismiss in all the circumstances. 

Key points

The decision shows that employers are entitled to take action against an employee who acts in a way that abuses the grievance process and which damages relationships in the workplace. Repeated transgressions may result in dismissal.

However, as a general rule employers will need to be cautious in respect of taking disciplinary action against an employee on grounds that they have raised complaints. 

It will need to be taken into account that if there has been an allegation of discrimination, an employee may have grounds to claim victimisation if any sanction is imposed. 

Similarly, consideration would also have to be given to whether the employee is making a public interest disclosure. This may not be immediately obvious. Any disclosure of information which, in the reasonable belief of the worker making the disclosure, is made in the public interest and tends to show wrongdoing may qualify for statutory protection. If disciplinary action is taken it might then give grounds for claims of detriment or unfair dismissal regardless of their length of service. 

Merran Sewell is a partner and specialist employment lawyer at Gateley