Mr Hope was a senior policy advisor. His work performance was good and he got on well with others until a dispute arose about a report he had written. This had to be signed off by a more senior manager, and included some comments which that manager considered to be unprofessional. Hope said he wanted to raise a formal concern. Before that was resolved, he raised a further issue – this time about his line manager, who (he said) had excluded him from regular catch-ups on a matter he was assisting with.
The employer rejected his first grievance but his appeal was partially upheld. The appeal manager also made suggestions to improve Hope's relationship with his managers.
Over the next few months, Hope raised other concerns about being excluded from meetings. When informal discussions stalled, he was invited to escalate his complaints via the formal process. He refused but said he wanted to be able to raise these at a future date. He was given a deadline to decide whether to invoke the formal grievance procedure. That resulted in another grievance.
Eventually, he was told that if he persisted in raising grievances about his attendance at meetings, he may be disciplined. In response, he raised another informal grievance alleging he had been bullied and victimised.
Hope raised seven grievances over a period of 13 months, and only one of these had been formally resolved. He was invited to a formal grievance meeting to move these forward which he refused to attend. The grievance procedure went ahead in his absence. Hope's behaviour was considered to be “frivolous and vexatious” because of the manner in which he'd approached his grievances and his failure to turn up to the meeting. Disciplinary action followed and Hope was dismissed for gross misconduct on the basis that his actions had fundamentally damaged his relationship with his employer. His appeal failed.
The employment tribunal said the dismissal was fair and Hope appealed, his argument being that the tribunal had not considered whether his conduct amounted to gross misconduct in the contractual sense.
The EAT rejected the appeal.
Under s 98 of the Employment Rights Act 1996 an employer must act reasonably before dismissing an employee for misconduct. There are four hurdles to clear:
- they must have a genuine belief in the misconduct;
- which they reached on reasonable grounds;
- they must have conducted a reasonable investigation; and
- the dismissal must fall within the range of reasonable responses available to the employer.
The EAT said the question of whether misconduct amounts to gross misconduct is a separate issue. It may be one factor to be taken into account, but is not the only one. Here, Hope hadn't brought a wrongful dismissal claim and his employers didn't rely on any contractually stipulated act to justify his dismissal. It, therefore, didn't have to demonstrate that he had deliberately committed a breach of contract, or had been grossly negligent.
He also argued that the tribunal's conclusions were perverse. The EAT disagreed. It said an employer can't be expected to leave concerns unresolved for an unlimited period because this would ”destroy its ability to address legitimate concerns promptly and to ensure the well-being both of the employee raising the grievance and of those who may be the subject of the grievance”. Applying that principle to these facts, the tribunal was entitled to conclude that the employer had acted reasonably in the face of Hope's determination to subvert its grievance procedures.
Implications for other employers
This decision doesn't give other employers the green light to discipline or dismiss serial complainers with impunity. You can't reject a grievance simply on the basis that you found the last five to be without foundation. And you must put the same amount of effort into investigating the serial complainer's position as others you need to interview.
That's not to say they have to ignore previous grievances. For example, if the employee has raised similar sorts of issues in the past and you've made changes that haven't worked, there's little point in making the same suggestions again. Mediation can sometimes work where there's conflict between colleagues but all sides usually have to be willing to compromise.
It is possible that, over time, an employee who makes several petty or repetitious complaints will destroy the implied duty of trust and confidence between you which will, potentially, justify a dismissal. But, you must warn the employee before you get to this stage and, given the risk if you get this wrong that you could make it easier for the employee to succeed with an unfair dismissal claim, a whistleblowing detriment or dismissal claim, or a discrimination victimisation claim, we recommend you take advice first.
Even if you've upheld a grievance, the person who raised it isn't usually entitled to have a say about the disciplinary action you decide to take about the people they've complained about. Provided you've taken measures which you believe will resolve the issue and those measures are within the range of reasonable responses open to you, the employee will not be able to challenge these.
Jo Moseley is a senior associate solicitor at Irwin Mitchell