The Case Of Hope Vs British Medical Association

Can it be fair to dismiss an employee for gross misconduct where they raised vexatious grievances and then refused to either pursue them or withdraw them?

Facts

Mr Hope was a Senior Policy Advisor for the British Medical Association (BMW) from June 2014 to his dismissal for gross misconduct on 24 May 2019.

Clearly unhappy with his employment, he brought several grievances against senior managers within the organisation. Amongst the many matters, he was concerned about the failure of said managers to invite him to certain senior manager level meetings. There were numerous attempts to resolve the grievances.

At Mr Hope’s insistence, they were dealt with informally by his line manager (who did not, in fact, have any authority over the subject matter of the grievance, which regarded decisions made at a level more senior to him). When encouraged to do so, Mr Hope refused to progress the matter to a formal stage but would not give up the right to do so at a later point.

To bring the matter to an end, the BMA invited Mr Hope to a formal grievance meeting, making it clear that his attendance was a reasonable management instruction. He, however, refused to attend and the matter was not upheld. He was subsequently invited to a disciplinary hearing for gross misconduct on the following allegations:

(i) that he had submitted numerous, frivolous grievances against Ms Dunn and Mr Jethwa;

(ii) that he failed to follow reasonable management instructions in relation to attendance at meetings;

(iii) that there was a fundamental breakdown of the working relationship between the claimant and senior management

He was dismissed for gross misconduct following the hearing and was paid notice pay. His subsequent appeal was dismissed.

Employment Tribunal (ET)

The ET found that the claimant’s behaviour in persisting in making numerous informal grievances and refusing to engage with a formal resolution process was vexatious and unreasonable. The respondent had proven the reasons for dismissal, its disciplinary process was reasonable, it collected and took into account all relevant evidence, the decision that the claimant had committed gross misconduct was reasonable in the circumstances, and dismissal was a sanction within the range of reasonable responses.

The claim was therefore dismissed and then appealed by the Claimant.

Employment Appeal Tribunal (EAT)

The EAT upheld the reasoning of the ET. It held that in these cases, gross misconduct was in reality a contractual matter, although would have some bearing as to whether or not the outcome was reasonable. As notice had been paid, there was no contractual element to this case and therefore it was simply down to assess whether or not the claimant’s behaviour was sufficiently serious to warrant a dismissal, which the EAT held it was.

Note for Clients

This case shows that there can be cases where repeated vexatious grievances can amount to conduct sufficiently serious to warrant a dismissal.

Employers should not however take from this that paying notice will remove the need to prove serious misconduct. Paying notice in this case meant that the court was not also dealing with a breach of contract issue (i.e. failure to pay notice pay), but it still had to assess, under section 98 of the ERA, whether or not the decision was fair and reasonable in all the circumstances, with one circumstance being the fact that this was labelled as ‘gross misconduct’ and dismissal was a potential outcome.

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