Hope v BMA: grievances, grievances, and more grievances

Background/case facts

Mr Hope was employed at the British Medical Association as a Senior Policy Adviser for just under 5 years. In January 2018, Mr Hope wrote to his line manager, Mr McAlonan,  commenting on a report produced by Ms Dunn (who was Mr McAlonan’s line manager). Mr Jewtha, who was Ms Dunn’s line manager, became aware of Mr Hope’s comments and considered them unprofessional  and dismissive. Upon becoming aware of this, Mr Hope raised his concern which became his first (but certainly not last!) grievance. In this grievance, he sought a “clear indication” that the BMA did not stand by Mr Jewtha’s views. In March 2018, following the grievance hearing Mr Hope’s grievance was not upheld. Mr Hope appealed this decision, and his appeal was allowed in part in July 2018.The appeal outcome did highlight that the management time that had been taken up with this issue had been disproportionate, and that it was disappointing that Mr Hope had not taken up the offer of a meeting with Mr Jethwa.

Mr Hope raised further concerns in February 2018, August 2018, and November 2018 about not being invited to meetings with senior management, and questioned if this was a result of raising the earlier grievance. Mr Hope wanted to informally discuss these concerns with Mr McAlonan and following these  informal discussions, Mr Hope was asked by Mr McAlonan whether he would like to progress to the formal grievance procedure. Mr Hope’s response was that he did not want to start a formal grievance but also did not want to lose his ability to do so in the future.

Mr Hope was given until 21 December 2018 to make a decision on progressing to a formal grievance. Upon hearing this, Mr Hope raised another separate grievance relating to the  “arbitrary deadline”, along with another grievance relating to Ms Dunn not inviting him to a meeting.

Mr Jethwa called a meeting, at which Mr Hope complained that it was inappropriate for Mr Jethwa to get involved as, it was his preference for the grievances to be dealt with informally by Mr McAlonan. Mr Jethwa responded that Mr McAlonan would not be able to resolve the issue on his own, as it concerned more senior management. He offered Mr Hope a meeting with Ms Dunn but he declined. Mr Jethwa told Mr Hope if he continued using the grievance procedure in this way it may be treated as a disciplinary issue. Mr Hope wrote to the Chair of the BMA to complain about Mr Jethwa's threat. Mr Jethwa again offered Mr Hope a meeting with Ms Dunn and said if the matter could not be resolved informally it would proceed to a formal grievance hearing.

Mr Hope unsurprisingly raised a further grievance with his line manager Mr McAlonan regarding Mr Jewtha’s communications which involved a threat of disciplinary action.

 Mr Hope was invited to attend a formal grievance meeting, but he refused to attend. In his absence, it was found that Mr Hope had abused the grievance process by insisting on keeping the grievances informal and in refusing to attend the meeting, and his behaviour was therefore vexatious, disrespectful, and insubordinate. It was also found that he had also abused the process with the repeated instigation of grievances without following them through. His grievance was dismissed and the disciplinary process was  invoked.

In April 2019, Mr Hope was invited to a disciplinary hearing to take place in May 2019, to address 3 allegations:

i.       His submittance of numerous, frivolous grievances against Ms Dunn and Mr Jewtha, and a failure to follow through the grievance process.

ii.     Failing to follow reasonable management instructions

iii.    A breakdown in the working relationship between Mr Hope and senior management

The hearing was chaired by external counsel, and the outcome of the disciplinary hearing was that Mr Hope was dismissed for gross misconduct. Following this Mr Hope appealed the disciplinary outcome, but his appeal was not upheld. Mr Hope subsequently brought a claim for unfair dismissal against the employer.

Employment Tribunal findings

The Employment Tribunal heard evidence from both parties and various witnesses. Mr Hope submitted that using a grievance process could never constitute gross misconduct and that his conduct was not a “deliberate wrongdoing”. The tribunal was expressly conscious to avoid substituting its own view for that of the BMA’s and focussed on “whether the respondent’s actions were within the range of reasonable responses open to an employer of similar size and resources”. It was found that the Mr Hope’s conduct could potentially amount to gross misconduct. The disciplinary investigation and procedure were reasonable, it was within the range of reasonable responses for the employer to conclude that Mr Hope’s behaviour was vexatious and unreasonable. The Employment Tribunal concluded that “the dismissal was within the band of reasonable responses of a similarly sized and resourced employer in these circumstances.”

Employment Appeal Tribunal findings

It is perhaps unsurprising that Mr Hope, who had already appealed grievance outcomes and his disciplinary outcome, went on to appeal the decision of the employment tribunal.

Mr Hope appealed the decision on the grounds that "the ET had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense and that the ET’s conclusions were perverse.”

The EAT did not find in Mr Hope’s favour and  dismissed the appeal. The EAT examined the facts and background of the case, and the tribunal’s decision before focussing upon Mr Hope’s grounds of appeal.

Mr Hope thought that it was an error to construe his conduct as gross misconduct, as he felt that the definition of gross misconduct was something that involves either “deliberate wrongdoing or gross negligence.” The Employment Appeal Tribunal rejected this argument and stated:

“Whether or not dismissal by reason of conduct is fair or unfair within the meaning of s.98(4) depends not on the label attached to or characterisation of the conduct as gross misconduct, but on whether, in the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee.”

Further, when considering the argument made by Mr Hope that a contractual analysis was needed to consider whether the conduct amounted to a wilful contradiction of the contract or gross negligence, the EAT highlighted that “this is not a case where any contractual analysis was necessary: the claim was not one of wrongful dismissal and the respondent did not seek to rely upon on any contractually stipulated act as amounting to gross misconduct.”  Therefore, this ground failed.

Another ground of appeal Mr Hope relied on was in relation to the lack of attendance at the grievance hearing being a primary reason for the dismissal which made the analysis of fairness “contaminated and unsafe”. The EAT disagreed with this and thought that not attending the grievance hearing was just one reason amongst the many for dismissing Mr Hope and that the Tribunal was correct to find that dismissing Mr Hope was in the band of reasonable responses.

Mr Hope had repeatedly raised grievances that were not resolved at the informal stage. However, instead of then raising these formally, he had tried to keep the grievances as live issues without actively pursuing them. It appeared that Mr Hope had not wanted to always formalise the grievance process as this would have risked the grievance process being concluded. The EAT noted that the purpose of a grievance procedure was to resolve concerns, not to act as a mechanism where  complaints could be left unresolved and continually raised by the employee on a whim. The employer could not be expected to leave concerns unresolved for unlimited duration, as that would destroy its ability to address legitimate concerns promptly, and to ensure the wellbeing of both the employee raising the grievance and of those who might be the subject of it. Mr Hope’s submissions were not able to meet the high standard of establishing a perversity challenge. Thus, the appeal failed in its entirety and was dismissed.

Core takeaways – what this means for employers?

There are some significant key takeaways from this case for employers.

Firstly, the Employment Appeal Tribunal highlighted that employers "cannot be expected to leave concerns unresolved for unlimited duration as this would destroy its ability to address legitimate concerns promptly and to ensure the well-being of both the employee raising the grievance and those who may be subject of the grievance”.This highlights the importance of employers dealing with grievances promptly in order to resolve concerns raised by an employee, and ensure the wellbeing of those involved is protected.

Ordinarily, if an employee is dismissed because of raising grievances it would be unlikely that a dismissal would be considered to be fair. Here, it was a significant part of the employer’s and the tribunals’ consideration that Mr Hope did not wish to proceed to the formal grievance stage but also did not wish to close the matter. The EAT were clear that a grievance procedure cannot be a "repository for complaints that can then be left unresolved and capable of being resurrected at any time at the behest of the employee". It therefore appears sensible that if an informal issue has been raised and it has not been resolved informally, then an employer can be justified in requiring the employee to either withdraw their complaint, or pursue this formally.

In this case, there were specific circumstances which made the grievances vexatious and frivolous, particularly as Mr Hope raised several grievances over a short period of months on the same or similar issues, and refused to progress or withdraw them. It is important for employers to remember that dismissals will only be fair if dthe ismissal was within the band of reasonable responses considering the size and resources of the employers. However, it is important for employers to deal with grievances fairly and grant them the proper time, resources, and impartiality. Thus, another key takeaway for employers is the importance of having strong and up to date grievance and disciplinary policies.  Having up to date policies allows employers to easily follow procedures and processes whilst also managing employee expectations. It is important that a proper examination of the grievances raised (either formal or informal) is undertaken before these are identified as “frivolous or vexatious”. Employers should also be mindful that some grievances may qualify as protected

Conclusion

This article has explored the case of Hope v British Medical Association. It is worth noting that Mr Hope did go on to appeal the EAT decision, but the Court of Appeal refused permission to appeal through a judicial order dated 12 September 2022

Some key takeaways for employers have been provided including the need for up-to-date policies, and the importance of acting reasonably in line with their size and resources. If there are any Mr Hopes in your organisation that are getting difficult to manage, it might be time to reach out to our outstanding Employment and HR team who are happy to help.