Thread by @JasonBraier

1/ Hope v BMA: EAT upheld a finding it was fair to dismiss for using a grievance process in a vexatious & frivolous manner. The judgment includes important clarification of the extent to which the term "gross misconduct" is relevant to s.98(4).
bailii.org/uk/cases/UKEAT…
#ukemplaw

2/ H was a senior policy adviser with responsibility for professional regulation & whistleblowing. He raised a number of grievances, including grievances about grievances, all starting from being pulled up about the tone of an email dismissive of some work by a Ms Dunn.

3/ H was threatened with disciplinary action if he persisted in raising grievances, so he then raised an informal complaint about that. The employer repeated the warning that if his grievance was viewed as frivolous or vexatious it could result in disciplinary action.

4/ Not heeding that warning, H raised a grievance about the warning - something like his 7th grievance. He refused though to attend a grievance meeting but the meeting was held & it was concluded he was abusing the grievance process & vexatious etc. Disciplinary action ensued.

5/ That related to 3 allegations: (i) re frivolous grievances; (ii) failing to follow management instructions to attend grievance meetings; (iii) fundamental breakdown in working relationship with senior management. External counsel found each charge made out.

6/ H was found to have committed gross misconduct & was dismissed. His appeal was rejected & he brought an unfair dismissal claim. The ET found the dismissal for conduct & that it was reasonable for the BMA to conclude H's conduct was vexatious & unreasonable.

7/ The ET found dismissal within the range of reasonable responses in light of conclusions re H's conduct, the impact on the relationship with Ms Dunn & the irretrievable breakdown in the relationship with his employer.

8/ H appealed on 6 grounds, 4 of which were allowed to proceed, & the principal ground being that the ET erred in construing his actions as gross misconduct as it was neither deliberate wrongdoing nor gross negligence as required by the definition in Sandwell v Westwood.

9/ The EAT started by noting that s.98(2) refers to conduct rather than misconduct as a potentially fair reason, & that it needs not be reprehensible or culpable to justify dismissal. Moreover, there's no magic under s.98(4) in the use of the term 'gross misconduct'.

10/ 'Gross misconduct' is a contractual concept relevant to entitlement to dismiss summarily & hence to the contractual entitlement to notice pay, relevant to a wrongful dismissal claim but not directly relevant to determination of whether there's been an unfair dismissal.

11/ The EAT didn't find Westwood authority for the proposition that an ET errs in a gross misconduct unfair dismissal case if failing to consider whether the conduct could amount to gross misconduct in the contractual sense.

12/ Instead, the EAT considered the contractual context merely one of the circumstances to take account of when considering reasonableness of treating the conduct as sufficient reason to dismiss. The point was clearly explained in West v Percy & Westwood was consistent with it.

13/ H's case was solely an unfair dismissal claim & not one where the employer had sought to rely on the contractual definition of gross misconduct in dismissing. The ET went through the relevant stages of determination (as per the 4-stage test in Kefir) & didn't err in doing so.

14/ The EAT also rejected a perversity appeal, holding it not perverse for the ET to find it reasonable for the BMA to consider H's actions vexatious. The EAT noted that H appeared to use the grievance process as a repository of unresolved complaints he could draw upon as & when.

15/ This wasn't merely a case of an individual being punished for raising grievances, but one in which the context of how H sought to use the grievance process for vexatious & frivolous purposes, intentionally leaving things in limbo & disregarding its impact on others.