The Employment Appeal Tribunal (EAT) has held in Hope v British Medical Association that an employee's dismissal for bringing numerous grievances which he refused to progress or withdraw was fair. His employer was entitled to find that the grievances were vexatious and frivolous and constituted gross misconduct.

The claimant was employed by the British Medical Association (BMA) as a senior policy adviser. He brought numerous grievances against senior managers, which concerned, among other things, the failure of those managers to include him in meetings that he thought he should attend. The claimant wished to discuss his grievances informally with his line manager, but this was not something that his line manager could resolve because it concerned the decisions of more senior managers. A formal grievance meeting was scheduled which the claimant refused to attend despite being told that the request was considered to be a reasonable instruction. The meeting took place in his absence, the grievances were not upheld and the BMA considered that the claimant's conduct of bringing numerous vexatious and frivolous grievances, and refusing to comply with a reasonable management instruction to attend the meeting amounted to gross misconduct. Disciplinary action was commenced and eventually the claimant was dismissed for gross misconduct.

The tribunal found that the claimant's dismissal was fair. It considered that it was reasonable for the BMA to conclude that his conduct was vexatious and unreasonable, and that the BMA had acted reasonably in dismissing him on that basis. The claimant appealed, arguing that the tribunal had failed to consider whether his conduct was capable of amounting to gross misconduct in the contractual sense. The EAT dismissed the appeal. The test of reasonableness under section 98(4) of the Employment Rights Act 1996 (ERA) involves a consideration of all the circumstances, one of which might include, in some cases, the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct. As there was no such contractual element in this case an analysis on that basis was not required. The claimant's conduct was a sufficient reason to dismiss, and the BMA did not seek to rely on any contractually stipulated act as amounting to gross misconduct.

Take note: The decision in Hope shows that where conduct is described as gross misconduct there's no need to carry out a contractual analysis to see whether the conduct amounts to a wilful contradiction of the contract (for instance by acting in breach of a contractual policy in a way that is stipulated to amount to gross misconduct). The test for determining whether a dismissal is fair or unfair under section 98(4) ERA may, in some misconduct cases, include the fact that the conduct relied upon involved a breach of contract which amounted to gross misconduct but this was not the case here; it was the claimant's conduct itself.

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