An Update On Vexatious Grievances
Key Contact: Claire Knowles
Author: Katie Shanahan
As we know, employees can raise a grievance where they have a concern, issue, or complaint regarding their employment. However, sometimes they can be raised with the intention of being vexatious, malicious, or to deliberately make life difficult for their employer. Even in these instances, a grievance must still be handled fairly and lawfully by the employer, who should apply a presumption from the outset that the complaint has been made in good faith, unless there is clear evidence to prove otherwise.
Can an employee be dismissed for making a vexatious grievance?
Recent case law has confirmed: Yes (however, care should be taken in considering the facts of each case).
In Hope v British Medical Association ('BMA'), an employee brought numerous grievances against senior managers at the BMA, including complaints that senior managers had failed to include him in meetings that he felt he should have attended. His grievances could not be resolved at the informal stage, partly because he wished to discuss them with his line manager. However, his line manager did not have the authority to resolve his concerns regarding more senior managers. The employee therefore refused to both progress his grievances to the formal stage or withdraw them.
A grievance hearing was arranged but the employee refused to attend, despite being informed prior to the hearing that his attendance was considered to be a reasonable instruction. The hearing proceeded in his absence and his grievances were not upheld.
The BMA considered the employee's conduct to amount to gross misconduct where he had brought numerous vexatious grievances and had refused to comply with reasonable management instruction by not attending the meeting. He was dismissed and the Employment Tribunal subsequently concluded that the decision was fair. The employee appealed the decision, claiming that the Tribunal had failed to consider whether his conduct was capable of amounting to gross misconduct. His appeal failed and it was decided that his conduct was a sufficient reason to dismiss him in all of the circumstances.
Interestingly, the Judge in the case confirmed that grievance procedures were "not a repository for complaints that can then be left unresolved and capable of being resurrected at any time at the behest of the employee". This means that employees cannot keep aside unresolved grievances and bring them to the forefront at a later date, potentially in addition to another complaint or on their own.
Approach to grievances going forward
It was key here that there had been a finding that the grievance was frivolous and vexatious and so those hearing grievances need to be very firm in their findings on this point. Despite the findings in this case, employers should continue to carefully consider the merits of each grievance an employee raises and follow procedure to allow the grievance to be properly considered. It should also be kept in mind that employees raising grievances are likely to be frustrated. Focus should be given to the merits of the grievance rather than the behaviour of the individual and if the grievance is found to be frivolous or vexatious, this should be clearly communicated and documented.
It is vital that whether or not a vexatious grievance could amount to gross misconduct should be assessed on a case-by-case basis, with reference to all factors including the employee's conduct both proceeding and following the raising of their grievance(s) and whether such conduct amounts to a sufficient reason to dismiss (with reference to section 98(4) Employment Rights Act 1996).
Employers should take particular care and seek advice based on their circumstances. In this case, there were several additional factors considered by the Tribunal, including the fundamental breakdown in the employee's working relationships. It is also important to note when handling a grievance relating to discrimination allegations or a protected disclosure, employees may argue that any action taken by the employer in response is in itself discriminatory and / or could be considered as victimisation. By way of example, a female employee may submit a grievance if she has been subjected to harassment relating to her sex. If the female employee was subsequently dismissed because she raised those grievances, this could give rise to a separate claim of victimisation, even though the original harassment allegations may be unsubstantiated. Therefore, while it is crucial that a fair process is followed regardless of the nature of the grievance, particular care should be exercised, informed by legal advice, when handling grievances relating to protected characteristics.
At Acuity, we have vast experience in advising on following a fair grievance procedure and what may or may not constitute a sufficient reason to dismiss an employee. If you would like to have a discussion with one of our team, please feel free to contact our Employment Team.