Unfair dismissal—dismissal for frivolous grievances did not require contractual analysis of gross mis-conduct (Hope v British Medical Association)

The test for whether a dismissal for conduct reasons is unfair under section 98(4) of the Employment Rights Act 1996 (ERA 1996), involves a consideration of all the circumstances, one of which might include, in some cases, the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct. However, not every case will have such a contractual element and, in those cases, an analysis on that contractual basis is not required. In the absence of that contractual element, it was not necessary for the employment tribunal to determine whether the claimant’s conduct (in raising vexatious and frivolous grievances and being unwilling to either progress or withdraw those grievances or to attend meetings in respect of them) amounted to a contractual breach and the tribunal did not err in holding that the dismissal was not unfair, according to the Employment Appeal Tribunal (EAT).

Hope v British Medical Association (EA-2021-000187-JOJ)

What are the practical implications of this decision?

This case is a useful reminder that in claims of unfair dismissal, the parties and the tribunal must focus on the statutory language of ERA 1996, s 98 and not get caught up on other concepts, e.g. the contractual concept of gross misconduct, as it is not determinative of whether or not a dismissal is fair.

It should be noted that:

• analysis of whether there was contractual gross misconduct may be relevant (but only as one of many other factors) when considering a dismissal where the employer relies on the employee’s breach of a specific contractual term (e.g., a term of the contract of employment or a term in a contractual disciplinary policy), but
• not all cases will involve a contractual analysis when considering whether or not a dismissal is fair

This case is also an interesting (and quite rare) factual example of a situation where an employee’s vexatious and frivolous grievances, and unwillingness to either progress or withdraw those grievances or to attend meetings in respect of them, amounted to conduct sufficiently serious for dismissal to be within the band of reasonable responses.

Case details

• Court: Employment Appeal Tribunal
• Judge: The Honourable Mr Justice Choudhury (President)
• Date: 15 December 2021

Pro Employment Law

Formed in 2017, following significant legislative changes designed to increase competition within the legal services marketplace, Pro Employment Law is a progressive set of barristers’ chambers, consisting only of experienced employment law barristers, offering a full range of specialist advisory, case management, and advocacy services directly to the public through the Public Access scheme. We supply our legal services exclusively in the area of Employment Law to clients located across England & Wales. All of the legal services we supply are covered by professional indemnity insurance with Bar Mutual.