The claimant was employed as a Senior Policy Adviser for the respondent association.  He began his employment in June 2014 and he was dismissed on the grounds of gross misconduct in May 2019.  His role included issues involving professional regulation and whistleblowing.   

The issue arising was that the claimant raised seven grievances in total.  The focus of the grievances was on his exclusion from particular meetings.  He discussed the grievances with his line manager and then refused to move the grievance onto the formal stage of the process. The line manager was actually not capable of resolving the issues outline, and when the claimant was given deadlines in relation to following the formal process, that led to further grievances being issued.  The nature of the grievances ranged from the fact that a deadline was imposed, to the assertion that attendance at particular meetings fell to the judgment of managers. In terms of the grievances, the claimant was invited to a hearing but he did not attend.  He instead refused to progress them and refused to withdraw them.  As a result, the grievances were dismissed.  

Given the multitude of grievances, the respondent brought disciplinary proceedings against the claimant on the basis that he had brought frivolous and vexatious grievances, he did not following reasonable instructions regarding the attendance at meetings and there was a breakdown of the working relationship.  He was subsequently dismissed for gross misconduct and at first instance the Tribunal found that it was a fair dismissal.  

The claimant appealed to the EAT where the primary point of contention was whether the claimant’s actions amounted to gross misconduct.  The EAT outlined that the Employment Rights Act 1996 only referred to ‘conduct’ as a fair reason for dismissal rather than misconduct or any use of ‘gross’.  Therefore, the fairness of the dismissal on grounds of conduct then relates to the size of the employer, their administrative resources and whether they had acted reasonably.   Therefore, it fell to whether the respondent had a genuine belief in the misconduct, that belief was reached on reasonable grounds, there was a reasonable investigation and dismissal fell within the band of reasonable responses.  Accordingly, there was no requirement to actually demonstrate that the conduct fell into the idea of ‘gross misconduct’, which was a contractual principle rather than one in statutory law.   Therefore, as it was not a case of wrongful dismissal, there was no requirement to examine the contractual aspect of ‘gross misconduct’.  Therefore, it was held that the dismissal was fair and the appeal was dismissed. 

Practical Lessons

This case provides a good review of the way in which ‘conduct’ operates from a statutory perspective.  The idea of gross misconduct, as outlined here, is largely a contractual premise rather than one which is grounded in statute.  Therefore, the concern of the Tribunal when there is a dismissal based upon conduct is whether it is fair considering the respondent’s belief and how they came to have that belief such as the investigation. This should be considered in preparing for a misconduct case.
https://assets.publishing.service.gov.uk/media/61b9cb19d3bf7f05545e1452/Mr_M_Hope_v_British_Medical_Association_EA-2021-000187-JOJ__Previously_UKEATPA_0003_21_JOJ__.pdf