A recent decision of the Employment Appeal Tribunal (EAT) could be regarded as an early Christmas present by beleaguered HR professionals. Familiar to many of us, the employee who keeps bringing grievances, but won’t engage with resolving them. Given the opportunity of redress, they may refuse to make their complaint formal, or refuse to attend a meeting, but they keep complaining.
In the case of Mr Hope and the British Medical Association the President of the EAT upheld the Employment Tribunal decision that the dismissal of an employee who would not cooperate with the reasonable steps which his employer was taking to resolve his concerns was fair.
Mr Hope was a senior policy adviser and had brought numerous grievances against senior managers. He complained, amongst other matters, about the failure of senior managers to include him in meetings which he thought he should be attending. Managers (rightly) considered that decisions as to who should attend were a matter for them. Mr Hope’s grievances could not be resolved at the informal stage, in part because he persevered in wanting to discuss his grievances informally with his line manager who had no authority to resolve concerns about more senior managers. Mr Hope refused to progress any of the grievances to the formal stage but he wanted to retain the ability to do so if he later chose, and he also refused to withdraw the grievances.
Trying to bring the matter to a head, the employer set a grievance hearing but Mr Hope refused to attend, despite being informed that attendance was considered to be a reasonable management instruction. The grievance hearing proceeded and the grievances were not upheld.
The respondent 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. The Employment Tribunal found that his dismissal was fair and he appealed to the EAT. His principal ground of appeal was that the ET had erred in failing to consider whether the alleged conduct was capable of amounting to gross misconduct in the contractual sense. He also argued that the ET’s conclusions were perverse.
The EAT dismissed the appeal and held that the correct test involved a consideration of all the circumstances, one of which might include, in some cases, the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct. However, there was no such contractual element in this case and an analysis on that basis was not required.
Clearly, this decision does not amount to licence to dismiss staff who keep making complaints, but it does give reassurance that if a reasonable grievance process is followed, in which the employee is given the opportunity of redress, the employee is not entitled to hold the employer to ransom by refusing to properly engage.
If you would like support in dealing with tricky grievances, please do get in touch.