Must ‘gross misconduct’ in the context of s.98(4) unfair dismissal proceedings be assessed by reference to the contractual test set out in Sandwell & West Birmingham Hospitals NHS Trust v Westwood UKEAT/0032/09 (“Westwood”)?
No, the EAT has held in Hope v British Medical Association EA-2021-000187-JOJ, in which Jack Mitchell acted for the successful BMA.
The Facts
The Claimant in Hope had refused to either pursue or withdraw multiple grievances raised by himself in relation to two of his managers, or even at first to discuss them with anyone aside from his direct line manager. The Claimant was ultimately asked to attend a formal grievance meeting to explore those grievances. He refused to do so. In his absence, the Chair of the meeting dismissed the grievances, concluded that the Claimant’s behaviour had been frivolous and vexatious, and that the repeated instigation of the grievance process had been an abuse of process. The Chair of the meeting invoked the disciplinary procedure.
At the disciplinary hearing it was concluded that: (i) the Claimant had submitted numerous, frivolous grievances; (ii) that he had failed to follow reasonable management instructions in relation to attendance at meetings; and (iii) that there was a fundamental breakdown in the working relationship between the Claimant and his senior management. Those actions amounted to gross misconduct, and the Claimant was dismissed with payment in lieu of notice.
The Claimant internally appealed that dismissal unsuccessfully, and then launched tribunal proceedings, alleging he had been unfairly dismissed.
The Tribunal’s Conclusion
The Tribunal concluded that the reason for the dismissal was the Claimant’s conduct, in refusing to either take forward or withdraw the multiple informal grievances, and that the Respondent had reasonably concluded the conduct was vexatious and unreasonable. The Tribunal concluded that the sanction of dismissal was within the reasonable responses available to the employer, and that the Claimant’s conduct had undermined the working relationship.
The Appeal
The Claimant argued unsuccessfully that the Tribunal had erred in concluding that the Claimant’s conduct could be construed as gross misconduct as, in order to do so, it had been required to consider the question of gross misconduct by reference to the contractual test in Westwood that ““gross misconduct” involves either deliberate wrongdoing or gross negligence”. Following that analysis, it would not be enough that the Claimant’s conduct was vexatious and frivolous, and the tribunal would have had to consider whether the conduct was objectively capable of amounting to gross misconduct. [22]
The EAT rejected that argument, instead agreeing with the Respondent’s submission that the correct approach to unfair dismissal is laid out in West v Percy Community Centre UKEAT/0101/15: a tribunal is not required to consider whether there had been gross misconduct in a contractual sense in deciding whether the dismissal was fair or unfair within the meaning of s.98(4), ERA.
The Tribunal began its analysis with the statutory language of s.98. In particular s.98 sets out “conduct” as a permissible reason for dismissal, rather than “misconduct” (the first indication that the Claimant’s arguments would not stand). Further, there is case law which establishes that conduct need not be reprehensible or culpable for it to be a potentially fair reason for dismissal. [25]
The Tribunal then turned to the four-stage test summarized in JJ Food Service v Kefil [2013] IRLR 850:
“8. … whether the employer had a genuine belief in the misconduct, secondly whether it had reached that belief on reasonable grounds, thirdly whether that was following a reasonable investigation and, fourthly whether the dismissal of the Claimant fell within the range of reasonable responses in the light of that misconduct.”
The EAT agreed that there is no requirement in that four-stage analysis to determine whether conduct amounts to “gross misconduct”, which involves a separate contractual concept. The EAT disagreed with the Claimant’s contention that there is tension between West v Percy and Westwood [33], observing that both cases confirm an employee’s breach of contractual obligations is a potentially relevant consideration, and that is just one of many circumstances a Tribunal will take into account in considering whether dismissal is fair or unfair within the meaning of s. 98(4). [32]
The different approaches taken in those cases in relation to gross misconduct are, according to the EAT, explicable by the facts of each case. In Westwood, there was a need to apply a contractual analysis to assess whether conduct amounted to wilful contradiction of the contract, because the misconduct relied upon was said to be a breach of the Trust policy, which was contractually stipulated to amount to gross misconduct.
As the EAT held, “in general, the real question is and remains the statutory one of whether the employer acted reasonably or unreasonably in all the circumstances in treating the conduct as sufficient reason to dismiss.” [32]
The EAT was also unconvinced in relation to the other grounds of appeal, which centred on the submission that the decision that the dismissal was within the reasonable responses available to the employer was perverse. None of the arguments came close to the high hurdle of establishing a perversity challenge. [39]
In particular, the EAT did not consider that failure to attend a grievance hearing could not be construed by an employer as wrongdoing; in the context of this case, where the Claimant had repeatedly raised and kept those grievances alive this was a reasonable conclusion.[37] The EAT’s remarks on the purpose and proper function of the grievance policy are instructive:
“the purpose of a grievance procedure is to resolve concerns about colleagues or the workplace; it is not a repository for complaints that can then be left unresolved and capable of being resurrected at any time at the behest of the employee. The employer 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 both of the employee raising the grievance and of those who may be the subject of the grievance. It was clearly permissible for the tribunal in this case to consider that the employer was acting within the range of reasonable responses in regarding repeated attempts to subvert that purpose as vexatious.” [37]
Case comment by Sophie David (Pupil).
