For most employers, dealing with the occasional workplace grievance is business as usual and an important opportunity to resolve a problem before it becomes more serious. This is particularly so in recent times given the new and unusual working conditions caused by the global COVID-19 pandemic. Often the issue can be resolved informally or, if the situation is more delicate, the employer's formal procedure can be used to determine the complaint.
However, on occasions an employer can be faced with a serial grievance raiser – an employee whose default position when it comes to any work-related grumble is to raise a grievance, often of a vexatious nature. This can create a situation that quickly becomes time-consuming, unproductive and unmanageable for the business.
This exact issue came before the Employment Appeal Tribunal (EAT) recently in the case of Hope v. British Medical Association (BMA), with the EAT holding that it was fair for the BMA to dismiss an employee for gross misconduct after he raised multiple vexatious grievances.
What happened in the case?
The Claimant, Mr Hope, brought a total of seven grievances against senior managers. However, he refused to progress any of the grievances to the formal stage, or to withdraw them. He also refused to attend a grievance hearing convened to address his concerns, which went ahead in his absence, following which none of his grievances were upheld. His employer, the BMA, later decided that Mr Hope's conduct throughout the grievance process (including his unreasonable failure to attend the grievance hearing) had been vexatious and frivolous, and dismissed him for gross misconduct.
Mr Hope brought a claim for unfair dismissal, but the Employment Tribunal (ET) held that his dismissal was fair. He appealed this decision, arguing that the ET had failed to consider whether his conduct was capable of amounting to gross misconduct. The EAT dismissed his appeal, holding that the BMA had been entitled to conclude that Mr Hope's multiple grievances were vexatious or frivolous and to rely on that as a fair reason for dismissal. His conduct did not necessarily have to amount to gross misconduct in order for the dismissal to be fair in all the circumstances.
Implications for employers
This judgment will be welcomed by employers who have to deal with repeat grievance raisers and the strain on business resources that they can bring. It serves as a reminder that the law does provide room for these employees to be exited from the business – provided the employer makes sure it follows its own policies and procedures in doing so. Saying that, caution is still advised. Employers need to remain vigilant of the risks when dismissing an employee who is perceived to be difficult. In particular, employees who are dismissed after raising grievances may be able to bring claims for whistleblowing and/or victimisation, so careful thought must be given (before dismissal) to the nature of any grievances that have been raised and whether the grievances are justified. For a reminder on whistleblowing, see our recent blog post.
Some practical steps that employers can follow to manage reoccurring grievances are set out below:
- Check that the grievance is not justified and, if it is, deal with the problem, not the employee.
- Ensure the company's grievance procedure is drafted flexibly, so that the policy does not act as a barrier to removing difficult employees. Grievance policies should not be overly complex and should always be non-contractual, so that the business can choose not to follow them where appropriate.
- Where a grievance relates to a minor complaint, an informal approach should be sufficient, reducing the need to follow a formal process every time. Mediation can also be a useful way of resolving grievances at an early stage.
- Keep a record of grievances raised by employees. That way, where an issue is being repeatedly raised by the same person, it can easily be identified and any overlap managed.
- Where grievances are raised repeatedly, analyse the content of the grievance and ask the employee to identify how the new grievance is different. Where there is nothing new, the business could consider incorporating the new grievance under an existing grievance process, dealing with it as an appeal or possibly even advising the employee that it has already been dealt with and so no action will be taken.
- When considering dismissing employees who continue to raise repeated grievances, think about the context of their complaints carefully before moving to dismissal, to reduce the risk of whistleblowing and/or victimisation claims. If dismissal is determined to be appropriate, any dismissal communications should make it clear that the reason for dismissal is not the fact that the employee brought a grievance or made a protected disclosure, but their unreasonable conduct when doing so.