Can you dismiss an employee who raises serial complaints? Louise Singh and Storm Evans look at the practical implications for employers from a recent case.
Fully and properly investigating an employee’s grievance is almost always time consuming and labour intensive. However, when an unhappy member of staff raises serial complaints, the work involved can become disruptive, draining and have a real adverse impact on your operation. Repeated grievances can put employment relationships under serious strain too.
In Hope v British Medical Association (UNFAIR DISMISSAL)  UKEAT 2020-000187 the Employment Appeal Tribunal (EAT) provided some reassurance to employers that it is possible to fairly dismiss a serial complainant, if their grievances are frivolous or vexatious.
The claimant worked as a senior policy adviser for the British Medical Association, who raised several grievances relating to senior management. Many of the grievances were informal, with the claimant often refusing to progress or withdraw them. His reasoning for this behaviour was that he was “scared that pursuing the formal stage would mean that the process would be closed off”. Some examples of these grievances were that he was not invited to certain meetings conducted by management, and he was being “subjected to arbitrary deadlines” when management gave him a timeframe to formally progress his complaints. Approximately seven grievances were raised, the last of which arose from a warning that raising persistent grievances regarding not being invited to managerial meetings (after being told that attendance at meetings was a matter for management to decide) could lead to disciplinary action.
Eventually, after this grievance was raised, a grievance meeting took place, which the claimant refused to attend. The grievance was dismissed. The chair of the meeting felt that the claimant’s conduct was frivolous and vexatious, and consequently he decided to invoke the disciplinary procedure. The claimant was subsequently dismissed on the basis that:
- he had submitted numerous, frivolous grievances against senior management
- he had failed to follow reasonable management instructions in relation to attendance at meetings
- there was a fundamental breakdown of the working relationship between the claimant and senior management.
The chair of the disciplinary hearing also concluded that the claimant’s actions amounted to gross misconduct.
Employment tribunal claim
The claimant subsequently brought a claim for unfair dismissal. The employment tribunal concluded that the reason for the dismissal was the claimant’s conduct and that the dismissal was within the band of reasonable responses.
Appeal to EAT
The claimant then appealed to the Employment Appeal Tribunal (EAT) on the basis that the tribunal had wrongly concluded that his actions could be construed as gross misconduct. He argued that gross misconduct involves either deliberate wrongdoing or gross negligence, and that the employment tribunal had failed to consider whether his behaviour fell into either of these categories or had breached his contract of employment. He relied on the case of Sandwell and West Birmingham Hospitals NHS Trust v Westwood  to support his arguments.
The EAT upheld the employment tribunal’s judgment, finding that it had properly assessed whether the respondent’s actions were reasonable and the decision to dismiss was within the band of reasonable responses.
Key findings in the judgment:
- s98 Employment Rights Act 1996 is always the starting point in cases of unfair dismissal, and s98(2) refers to ‘conduct’ as a fair reason for dismissal, rather than ‘misconduct’
- whether dismissal for conduct is fair or unfair does not depend on the fact that the conduct was labelled as gross misconduct, but on whether, in the circumstances (including the size and administrative resources of the employer), the employer acted reasonably in treating it as a reason for dismissal
- Westwood is not authority for the proposition that, whenever the label ‘gross misconduct’ is used, a contractual analysis as to whether the conduct amounted to a deliberate contradiction of the contract or gross negligence, as the circumstances were materially different.
Practical implications for employers
This judgment is positive for employers as it adds another layer of reassurance when dealing with difficult employees bringing frivolous grievances.
However, bear in mind the specific factors that made the grievances in this case ‘vexatious’ and ‘frivolous’; the claimant repeatedly brought grievances for the same or similar reasons, and often refused to progress or withdraw them.
If you are considering dismissal of an employee for raising serial complaints, it is important to ensure that the grievances presented are dealt with as fully as possible, and to clearly record why you do not believe them to have any merit. If you do not deal with grievances properly (in accordance with either your own grievance procedure or the ACAS Code of Practice on disciplinary and grievance procedures), this could open your organisation up to a claim for unfair dismissal, including a 25% uplift to compensation payable. Equally however, the employee’s vexatious use of the grievance procedure could open them up to a 25% reduction to any compensation they may receive. Think carefully before you label a complainant as ‘frivolous or ‘vexatious’ and, if possible, take legal advice before doing so to make sure your position will stand up to scrutiny.
Remember too that some grievances may qualify as protected disclosures, which are not always obvious. A grievance may also qualify as an assertion of a statutory right. If you dismiss an employee for bringing a grievance of this nature, this could enable the employee to bring a claim for automatic unfair dismissal. Note that employees do not need two years’ qualifying service to make an automatic unfair dismissal claim.
It is also important to be mindful of the risk of victimisation. If the employee alleges, or has previously alleged that they have been discriminated against on the basis of a protected characteristic, any refusal to consider a further complaint or invoking your disciplinary procedure too hastily may raise the risk of a discrimination claim.