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Abuse of the Grievance Procedure

Abuse of the Grievance Procedure

Posted on December 23, 2021

Employers sometimes become frustrated with employees who put in multiple grievances or grievances which appear to be an abuse of the grievance process.

In Hope v British Medical Association in the Employment Appeal Tribunal, Mr Hope brought numerous grievances against senior managers. These were concerned with, amongst other matters, the failure of senior managers to include him in meetings which he thought he should be attending. Management considered that decisions as to who should attend were a matter for them.

The grievances could not be resolved at the informal stage, in part because Mr Hope wished to discuss his grievances informally with his line manager who had no authority to resolve concerns about more senior managers. However, Mr Hope refused to progress any of the grievances to the formal stage, and neither did he withdraw the grievances.

A grievance hearing was fixed but Mr Hope refused to attend despite being informed that attendance was considered to be a reasonable instruction.

The grievance hearing proceeded in his absence and the grievances were not upheld.

The BMA considered Mr Hope’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 ET found that his dismissal was fair and Mr Hope appealed to the EAT, arguing that the ET had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense and that the ET’s conclusions were perverse.

The EAT upheld the Tribunal’s decision that the dismissal was fair. The test under s.98(4) of the Employment Rights Act 1996 involved a consideration of all the circumstances. The ET was entitled to conclude that the employer had acted reasonably in treating the reason for dismissal, namely Mr Hope’s conduct as described, as being a sufficient reason to dismiss in all the circumstances.

Comment: Employers should still take care before dismissing an employee in similar circumstances. Dismissal might trigger other claims as well, for example unlawful discrimination or whistleblowing claims.

see also: https://www.reculversolicitors.co.uk/unfair-dismissal/ and https://www.reculversolicitors.co.uk/whistleblowing-protected-disclosures/

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