Hope v British Medical Association - Unfair Dismissal

In this decision on unfair dismissal, the Employment Appeal Tribunal (EAT) had to consider whether or not the Employment Tribunal (ET) conclusions were perverse in a case where numerous and vexatious grievances were found to be a fair reason for dismissal, and if it had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense

LAW

Employment Rights Act 1996 (ERA)

Section 98.

(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

  (a) the reason (or, if more than one, the principal reason) for the dismissal, and

  (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it—

  (b) relates to the conduct of the employee,

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

  (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

  (b) shall be determined in accordance with equity and the substantial merits of the case.

FACTS 

Mr Hope was a Senior Policy Advisor for the British Medical Association (BMA) 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. 

This was appealed. 

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 employers 

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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