A risk-based approach to managing repeat employee grievances

Grievances are an essential and important tool in resolving workplace issues. But what if an employer is faced with an employee who raises repeat grievances, and uses the grievance process in an unreasonable or inappropriate manner?

In Hope v British Medical Association, the EAT has upheld an Employment Tribunal’s decision that an employee was fairly dismissed for bringing numerous grievances on the basis that his grievances were vexatious and frivolous, and he had refused to comply with a reasonable management instruction to attend a grievance meeting. We look at the case in more detail and some practical steps employers can take to help reduce the likelihood of repeat grievances being raised and deal with them if they are.

What happened in the case?

In this case, the claimant raised a grievance after receiving some feedback about the tone of an email he sent to a colleague. This was the first of seven grievances raised by the claimant in relation to senior management. He refused to progress any of the grievances to the formal stage, but tried to retain the ability to do so, and did not withdraw the grievances.

A grievance hearing went ahead in his absence and the grievances were not upheld. The employer considered that the claimant’s conduct amounted to gross misconduct in that he had brought numerous vexatious and frivolous grievances and refused to comply with a reasonable management instruction to attend the meeting. He was dismissed.

The claimant brought a claim for unfair dismissal. That claim was dismissed by an Employment Tribunal. The claimant appealed to the Employment Appeal Tribunal (EAT).

The claimant’s appeal was refused by the EAT. The main ground of appeal focussed on the characterisation of the conduct as “gross misconduct”. It is already well-established that for conduct to amount to gross misconduct it needs to amount to either deliberate wrongdoing or gross negligence. The claimant argued that in concluding that he had committed gross misconduct, the Tribunal should have objectively assessed whether his actions in raising vexatious and frivolous grievances was deliberate wrongdoing or gross negligence.

In rejecting the claimant’s appeal, the EAT referred to the decision in JJ Food Service v Kefil which provides a four stage test for fair dismissals for conduct:

1. Did the employer have a genuine belief in the misconduct?
2. Did the employer reach that belief on reasonable grounds?
3. Had there been a reasonable investigation?
4. Was the decision to dismiss within the range of reasonable responses in the light of that misconduct?

That process does not require a tribunal to decide whether the conduct was in fact gross misconduct. Some cases might require this - for example where an employer has a disciplinary policy which stipulates that certain activities will be gross misconduct – but this wasn’t such a case.

In this case, the employer was entitled to rely on the numerous grievances the claimant raised and conclude those were frivolous or vexatious. The Employment Tribunal was entitled to conclude that the employer had acted reasonably in treating the Claimant’s conduct as being a sufficient reason to dismiss in all the circumstances.

Can an employee be dismissed for raising repeat grievances?

This is a very fact specific issue and employers should seek legal advice on the particular facts of each case. For example, there may be cases where an employee repeatedly raises grievances for legitimate reasons, such as where the initial grievance did not get to the root of the problem or resolve the underlying issues and further issues arise. There is also the risk of victimisation and whistleblowing claims – with the potential for uncapped compensation - in addition to unfair dismissal claims where an employee is dismissed after raising grievances.

For example, in the case of Woodhouse v West North West Homes Leeds Ltd, an employer was found to have victimised an employee who was dismissed after raising repeat grievances. In this case, the Claimant raised 10 grievances over a five-year period and his employer dismissed him on the basis that his behaviour in raising such grievances and refusing to accept grievance outcomes evidenced that he had lost trust and confidence in the company. He also raised nine related employment tribunal claims against his employer. The EAT found that the allegations raised by the Claimant were not entirely fictitious and concluded that his employer had victimised him under the Equality Act 2010.

However, where the employee raises a grievance in bad faith making deliberately false allegations, case law[1] confirms this may be treated as misconduct, and in serious cases may justify dismissal. The case of Hope which we looked at above shows that where an employee raises numerous grievances and refuses to progress or withdraw them, this may amount to vexatious and frivolous behaviour and may also potentially justify dismissal.

The fact that each case turns on its facts leaves employers in a difficult situation when they are met with employees who continue to raise repeat unfounded grievances.

It is therefore sensible for employers to focus on what steps they can take to reduce the likelihood of repeat grievances being raised in the first instance, and to deal with them if they do arise.

What practical steps can employers take to reduce and manage repeat grievances?

Key practical steps that employers can take to reduce the likelihood of an employee raising repeat grievances and manage them if they do include:

• Ensure grievance procedures are drafted flexibly to allow an assessment as to whether a repeat grievance should be dealt with formally or not, including reserving the right not to deal with grievances which are repeat grievances
• Introduce a culture of open communication with employees so any issues can be dealt with before they become so serious that an employee raises a formal grievance
• Where the grievance appears to concern something trivial, discuss with the employee whether there is a real need to go through the formal grievance procedure to resolve it
• Ask employees to set out how a new grievance differs from earlier grievances to ensure it is not repeating the same issues
• Consider mediation if the grievances relate to a working relationship which is at risk of breaking down
• Consider whether certain allegations, if found to be deliberately false or malicious, should be dealt with as a misconduct issue
• Be consistent.