UK: Employment Law Bulletin - January 2022

Welcome to Wrigleys' Employment Law Bulletin, January 2022.

In our first article this month we report on the interesting case of Hope v British Medical Association in which the EAT considered whether a dismissal for raising a series of informal grievances and refusing to formalise them was fair in all the circumstances. This case provides helpful guidance on when a dismissal for conduct which is not gross misconduct may be found to be fair.

In Wells Cathedral School Ltd v Souter & Leishman, the EAT considered whether it was just and equitable to extend the time limit to bring discrimination claims. In this case, the claimants argued their delay was due to their wish to resolve their concerns through an internal grievance process.

Readers will be aware that staff working in care homes are now subject to a Care Quality Commission requirement to be vaccinated against Covid-19 or to have a valid medical exemption. However, before this requirement was brought into force a number of care sector employers issued management instructions requiring their staff to be vaccinated. We report on a recent employment tribunal decision, Ms C Allette v Scarsdale Grange Nursing Home Limited, which considered whether a care home worker was fairly dismissed for refusing to comply with a management instruction to be vaccinated.

And in the next in our series of Wrigleys' Essential Guides, we share some top tips for those undertaking the investigation stage of the disciplinary process.

It would be great to see you at our next free Employment Brunch Briefing on 1 February which is a useful data protection update for employers from our regular guest speaker, Ibrahim Hasan of Act Now Training. Please see the link below to book your place or to access recordings of our past Employment Brunch Briefings.

Employee fairly dismissed for using grievance process as a 'repository of unresolved complaints'

Article published on 19 January 2022

EAT decision highlights that abuse of the grievance process may give employers grounds to dismiss.

Every employer should have a grievance policy. These are designed to act as a way for employees to raise issues on a wide range of topics concerning their employment, from their terms and conditions and treatment to broader issues including leadership and culture.

For this reason, they are a useful pressure release valve designed to allow an employee's voice to be heard via a constructive process and also to alert the employer to issues that, if left unchecked, might otherwise lead to conflict, liabilities and claims.

However, a good grievance policy will point out that it is not there to be abused and that 'vexatious or frivolous' complaints may be treated as disciplinary issues. A recent EAT decision has highlighted an example of this type of behaviour and when it may lead to grounds for dismissal.

Case: Hope -v- British Medical Association [2021]

Mr Hope submitted comments to his line manager about a report written by another manager, Ms Dunn. These were seen by Mr Jethwa, Ms Dunn's line manager, who fed back to Mr Hope that some of the comments were inappropriate and that the tone of them was dismissive of Ms Dunn.

A grievance was raised by Mr Hope with his line manager seeking reassurance that management did not share Mr Jethwa's views. The grievance and subsequent appeal were not upheld.

Mr Hope separately wrote to his line manager raising concerns that he was not being included in certain management meetings, asking that these concerns be dealt with informally. The same issue was raised at least two more times but when asked if he wanted to make a formal complaint, Mr Hope refused but stated that he did not wish to 'give up his ability to do so'. Mr Hope was told to decide by a particular date whether he wanted to pursue a formal hearing. In response, Mr Hope raised a grievance against being subjected to an 'arbitrary deadline' and asked that the time limit be withdrawn.

Several more complaints were made informally by Mr Hope against Ms Dunn and Mr Jethwa, but each time he refused to bring a formal complaint. Ms Dunn began to feel that Mr Hope's constant criticism of her amounted to harassment and when Mr Jethwa offered to try and resolve the situation via informal means, Mr Hope refused. Mr Jethwa made clear that if the informal complaints persisted the matter may be considered under the disciplinary procedure. Mr Hope wrote to Mr Jethwa to raise an informal concern about the threat of disciplinary action.

Eventually, Mr Hope was informed that if these matters could not be resolved informally then a formal process would be undertaken. Mr Hope was warned that if a formal process found his complaints to be frivolous or vexatious, it could result in disciplinary action. Mr Hope was then invited to a formal grievance meeting, but he refused to attend. It was held in his absence and his complaints were found to be frivolous, vexatious and disrespectful and that his actions were insubordinate.

A disciplinary hearing was then held at which it was decided to dismiss Mr Hope, who was paid in lieu of notice.

The Employment Tribunal concluded the dismissal was fair on the basis that, during the disciplinary hearing, the BMA had made reasonable findings that Mr Hope had persisted in making multiple informal grievances without either withdrawing them or taking them to a formal hearing, that he had refused reasonable line management instructions and had failed to attend the grievance hearing convened. The Tribunal found BMA was entitled to conclude this was unreasonable conduct and found that dismissal was within the band of reasonable responses in these circumstances because Mr Hope's actions undermined the working relationship and amounted to conduct which was likely to breach the implied term of trust and confidence.

EAT decision

Mr Hope's chief grounds of appeal were that the Tribunal had erred by concluding his actions could be gross misconduct because they were not deliberate wrongdoing or gross negligence, as directed by case law on the subject. He also claimed that the decision to find his dismissal fair was perverse because it set a precedent that employees may be obliged to bring formal complaints if they raised a matter informally.

The EAT dismissed all grounds of appeal. On the issue of gross misconduct, the EAT highlighted that the concept was a contractual one which may be used by employers as a basis on which to dismiss employees without notice or pay in lieu of notice where specific acts deemed to be gross misconduct by the employer were established to have taken place. The EAT noted that in this case, BMA did not need to consider if Mr Hope had deliberately or wilfully contravened his contractual terms as this was not the issue at hand. Rather the question was whether BMA's decision to dismiss met the requirements of s.98(4) Employment Rights Act 1996, which in this case the Tribunal had established the BMA had done.

On perversity, the EAT judge concluded that on the facts of the case it was clear that raising multiple informal complaints but refusing to resolve them could amount to misconduct. This finding did not undermine grievance procedures because grievances should either be withdrawn or resolved formally if an informal approach does not resolve them. In the EAT's view, Mr Hope was abusing the process by treating it as a 'repository of unresolved complaints' that he could save and dredge up at a later time.

Comment

It is easy to see how situations like the one in this case could arise. Grievance policies do not usually set out the need to either withdraw or resolve a grievance because the working assumption is that the party raising one would do so in good faith. Without this clarity in writing employers may be put in a difficult position, considering whether taking action against the employee would breach the employer's duty of implied trust and confidence to the employee to deal with a grievance, or be taken as retaliation (or a detriment) for raising the grievance, and potentially result in claims.

Although the precise reasons for doing so are not clear, Mr Hope was pushing his employer into an increasingly difficult position by refusing to engage with the grievance process properly. It should not go unnoticed that Mr Hope's actions were being interpreted as harassment by Ms Dunn, putting further pressure on his employer to resolve the matter.

BMA were able to be proactive in dealing with this issue, rather than tie itself in knots trying not to offend Mr Hope, and in doing so recognised its duties to other employees affected by Mr Hope's actions.

The decision in this case will be welcomed by employers, but it should not be seen as a licence to mistreat employees who raise grievances. As well as potentially being a breach of trust and confidence, failure to deal with grievances is a breach of the ACAS Code. If the matter came to a court or tribunal, compensation awards would be subject to a 25% uplift as per ACAS guidance.

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