Is it ever fair to dismiss an employee who makes numerous vexatious grievances?
Most employers are aware that employees can raise grievances in order to make a complaint or raise an issue in relation to their employment. Most grievances are made in good faith, however some grievances are made to be deliberately vexatious, in order to cause annoyance, frustration or worry to the employer or those involved.
It can be a significant issue for some employers who are obliged to treat all grievances on the presumption of good faith, even where it seems like the grievance has been made just to make life difficult for the employer. It can be a burdensome task for employers to deal with numerous malicious grievances, especially where an employee refuses to progress or withdraw them.
There is some good news for employers in the form of a ruling in a recent case. In this case, it was confirmed that a dismissal on the grounds of gross misconduct relating to the bringing of multiple vexatious/frivolous grievances, which were not subsequently withdrawn or pursued, was fair.
A key factor to the outcome of this case was that the Claimant refused to pursue the grievances, which was seen as an abuse of the process and which eroded the relationship between the Claimant and the employer.
This case is not a ‘green light’ to dismiss all employees who raise multiple grievances, even if they initially appear to be vexatious or frivolous, as this case is fact specific. We therefore recommend you always take advice in this area before taking any drastic action such as a dismissal.
Dealing with grievances going forwards
Dealing with multiple grievances from an employee is time consuming and frustrating and this case is helpful. However, it doesn’t mean that employers can dismiss all employees who raise multiple grievances.
Whilst this case demonstrates that in some situations it is possible to fairly dismiss an employee who brings repeated vexatious grievances, it is important to remember that any outcome is always going to be fact specific.
Just because an employee makes numerous grievances does not necessarily mean they will be considered to be malicious or vexatious. You should carefully consider the content of the grievances and consider whether they are about the same or different issues. You should also consider how the employee deals with them and attempts to resolve them. This will help you to determine whether it is best to organise one grievance meeting to deal with all the issues, or separate ones to deal with each separate concern. If, after due consideration, you believe an employee is making a series of frivolous or vexatious grievances, then you should ensure this is considered properly and communicated and documented following the hearing.
As well as this, employers should tread carefully in situations where employees have raised whistleblowing or discrimination concerns as part of their grievance. Not only because employees are eligible to make these claims without having 2 years’ service, but also because any response an employer takes in response to them raising a grievance alleging these concerns, such as dismissing them, could in itself be discriminatory and an employer could face a claim for victimisation on this basis as well, even where the original discrimination / whistleblowing concerns may have been unsubstantiated.
We therefore recommend you take legal advice in this area based on your specific circumstances. At Coffin Mew we are experienced in helping employers deal with and respond to grievances and we would be delighted to assist you and provide advice where required. Please do get in touch with us today to discuss any concerns or questions you have on this topic.
We have included full details of the case below.
Facts of the case
The facts of Hope v British Medical Association (‘BMA’) are as follows:
- Mr Hope was employed as a senior policy advisor by the BMA.
- During his employment he raised a grievance against a colleague. The BMA offered Mr Hope a meeting with the colleague to discuss the issue, but Mr Hope refused. The grievance was partially upheld on appeal, however the BMA expressed disappointment that the Claimant had not met with the colleague.
- Following this Mr Hope then complained that he was not being invited to meetings by senior management and said it was because he had raised a grievance. The BMA asked if he wanted to raise a formal grievance but he didn’t want to. However, Mr Hope did request to retain his right to do so. The BMA said he could raise a grievance if he wanted to but advised he should do so by a certain date. Mr Hope raised a further grievance stating that the deadline was arbitrary.
- He then raised a further grievance as he was not invited to another meeting. Mr Hope was invited to meet to discuss the complaint and he declined to do so.
- Mr Hope refused to progress any of his grievances to the formal stage but also refused to withdraw them.
- Mr Hope was therefore warned that he may face disciplinary action if he continued to use the grievance process in the way he had been. Mr Hope was unhappy with this and so he raised a further grievance regarding the threat of disciplinary action.
- Mr Hope was invited to a formal grievance meeting but he refused to attend, even though his employer said that it was a reasonable management instruction to attend the meeting.
- The grievance meeting was held in his absence and his grievance was dismissed on the basis that the BMA felt that Mr Hope’s repeated raising of grievances without concluding them or withdrawing them was frivolous, vexatious and an abuse of process.
- He was invited to a disciplinary meeting on that basis and was subsequently dismissed for gross misconduct.
- Mr Hope subsequently brought a claim for unfair dismissal.
Outcome of the case
The Employment Tribunal held that Mr Hope’s dismissal on the grounds of gross misconduct was fair. It was held that the BMA had carried out a reasonable investigation and disciplinary procedure and that it was reasonable for the BMA to have concluded that Mr Hope’s behaviour was unreasonable or vexatious. Mr Hope then appealed this decision to the Employment Appeal Tribunal (‘EAT’) on the basis that the Tribunal had failed to consider whether his conduct was capable of amounting to gross misconduct.
The EAT dismissed the appeal and held that his dismissal on the grounds of conduct was fair and reasonable in all the circumstances.
In this case, the key factors that made dismissal fair included the following:
- Mr Hope refused to progress or withdraw his grievances (suggesting they were not made in good faith or well founded);
- Crucially, the grievances had been found to be frivolous and vexatious following a hearing;
- Mr Hope failed to comply with a reasonable management instruction in not attending a grievance meeting.
Whilst the facts of this case made the dismissal fair it will not be the same in every case. As such, we recommend that you start with the presumption that a grievance has been made in good faith and deal with it carefully by following proper procedure and considering the merits of each grievance appropriately. You should also keep in mind that the employee is, in most cases, likely to be raising genuine concerns that they have about their employment regardless of any disruptive or erratic behaviour they may be exhibiting out of frustration.
As these situations are very fact specific, we recommend you take legal advice on your particular circumstances before proceeding. Please do not hesitate to get in touch with the employment team at Coffin Mew if you would like some further advice.