Employment law, generally speaking, seeks to put in place fair rules necessary to ensure a smooth working environment. Where both parties approach the process constructively, they can resolve many disputes. However, these processes can also break down to such an extent the working relationship is harmed. What happens when the employee’s approach to the process is frivolous and designed to cause trouble? Can the employee be disciplined and ultimately dismissed? In Hope v British Medical Association, the Employment Appeal Tribunal (EAT) was asked to consider just that and their answer was “yes”.

H was employed by BMA from June 2014. During the period of employment H brought a number of grievances, including against senior managers who, among other things, failed to include him in meetings that he thought he should attend. H wished to discuss his grievances informally with his line manager, M, but was informed that as this involved decisions of more senior managers M could not resolve the issue. H was invited to escalate his concerns to the formal stage or withdraw them. However, H refused.

A formal grievance meeting was scheduled, but again H refused to attend. The meeting proceeded in H’s absence and his grievances were not upheld. The BMA considered that H’s conduct of bringing numerous vexatious and frivolous grievances, and his refusal to attend the grievance hearing was a refusal to comply with a reasonable management instruction and therefore amounted to gross misconduct. The BMA took disciplinary action against H and eventually dismissed him for gross misconduct.

An employment tribunal found that H’s dismissal was fair. It considered that it was reasonable for BMA to conclude that H’s conduct was vexatious and unreasonable and that BMA had acted reasonably in dismissing H on that basis. H appealed to the EAT arguing, among other things, that the tribunal had erred by failing to consider whether his conduct was capable of amounting to gross misconduct in the contractual sense. H appealed.

The EAT dismissed the appeal. Mr Justice Choudhury, President of the EAT, held that the test for determining whether a dismissal is fair or unfair within the meaning of S.98(4) ERA involves consideration of all the circumstances, which might, in some misconduct cases, include the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct. The tribunal had been entitled to find that BMA had acted reasonably in treating the reason for dismissal, namely H’s conduct as described, as being a sufficient reason to dismiss in all the circumstances.

In conclusion

The key to this finding is that the employer had clear policies in place and complied with them. The employer followed these processes in order to consider the employee’s concerns in spite of the employee’s actions. The employee’s actions in refusing to co-operate was sufficient for his employer to find that the grievances were vexatious and frivolous. Whilst we would not normally advise to go as far as dismissal, this case shows clearly that disciplining an employee where their actions are designed to cause trouble rather than resolve a dispute can sometimes be an option.

As always, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.

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