When considering whether a dismissal is fair, tribunals have to take all relevant circumstances into account. In Hope v British Medical Association (BMA) the EAT held that this does not include having to take contractual considerations into account if they did not play any part in the dismissal.
Basic facts
Mr Hope, a senior policy adviser for the BMA, raised his first grievance in March 2018. This was about the response of a senior manager to comments that he had made about a report written by another manager. In February, August and November 2018, he raised further informal concerns about not having been included in certain meetings by senior management. Whilst refusing to progress matters to a formal level, he raised another grievance about being given a deadline to decide one way or another.
In January 2019, he raised two more grievances about being excluded from meetings by senior managers. Again, Mr Hope insisted on discussing the matter informally with his line manager, although that manager did not have the authority to resolve it. He was told that if he continued to raise grievances, he could be disciplined, which prompted yet another informal grievance. Mr Hope then refused to attend a meeting to discuss his grievance in March 2019.
The employer considered this amounted to misconduct and he was dismissed for gross misconduct following a disciplinary hearing in May 2019. He claimed unfair dismissal.
Tribunal decision
The tribunal found that it was within the range of reasonable responses for the BMA to conclude that Mr Hope’s grievances were vexatious and that his conduct was likely to breach the implied contractual term of trust and confidence between them. As the BMA had collected and taken into account all relevant evidence and Mr Hope’s appeal was considered properly, the tribunal concluded that the dismissal was fair.
Mr Hope appealed on the basis that the tribunal had failed to consider whether the conduct that the BMA had relied on was capable of amounting to gross misconduct in the contractual sense.
EAT decision
The EAT began by clarifying that the Employment Rights Act 1996 does not refer to “gross misconduct”, but only to “conduct”. The statutory question as to whether a dismissal is fair or unfair does not therefore depend on whether it has been characterised as gross misconduct, but on whether “the employer acted reasonably or unreasonably”.
The relevant legal test involved a consideration of all the circumstances which might include the fact that the conduct relied on involved a breach of contract amounting to gross misconduct. In other words, it might be a potentially relevant consideration, but would only be one of the circumstances that a tribunal would take into account.
In this case, Mr Hope had not claimed that he had been wrongfully dismissed, nor had the BMA relied on any “contractually stipulated act” by Mr Hope. Instead, it had relied on the numerous grievances that he had raised and the failure to comply with reasonable and lawful instructions. The tribunal had looked carefully at whether the BMA believed that those were the reasons for the dismissal; had reasonable grounds for that belief; had carried out as much investigation as was reasonable in the circumstances; and whether dismissal was within the band of reasonable responses.
As there was no contractual element to this case, it was not necessary to determine whether Mr Hope’s conduct amounted to a “wilful contradiction” of the contractual terms.
The EAT therefore concluded that the tribunal was entitled to find that the employer had acted reasonably in treating Mr Hope’s conduct as a sufficient reason to dismiss him.