Introduction

Most employee problems can usually quickly be categorised as capability or misconduct, but what about behaviour which isn’t obviously one or the other, but which is a problem nonetheless? Employers are wary of taking action that might result in a claim, and as with so many ‘minor’ issues, the time spent in dealing with a problem employee can often be disproportionate to the severity of the issue itself. In this article, we take a look at employees who are serial complainers or grievance-raisers.

HR practitioners dealing with problem employees should look at what the issue really is, any environmental triggers, personal issues, training needs or reasonable adjustments and, ultimately, decide whether more permanent action is needed.  It’s very important to document your findings throughout and not to make any knee-jerk reactions.

Ask yourself a few preliminary questions before you make a start:

  • WHAT is the problem behaviour?
  • WHO is the problem and whose problem is it?
  • WHERE is the problem behaviour coming from?
  • WHY is the problem behaviour arising?
  • WHAT can be done about it?

The serial complainer

A serial complainer or grievance-raiser can affect morale. Their behaviour might also be counter-productive, with complaints less likely to be taken seriously. However frequent they are, it’s important to look at each grievance carefully. The last thing that you want is to ignore a grievance which turns out to be a genuine and serious complaint, particularly if it’s one of the protected situations that might amount to a whistleblowing such as a risk to health and safety.

Start with an investigation and identify who the problem employee really is. This might either be as part of the grievance procedure itself, or as an informal investigation. Whether or not you commence a formal grievance investigation may depend on how many grievances have been received previously and what action has been taken in relation to those grievances. If this employee’s behaviour has reached the point of being a problem, it’s likely that there have been unfounded grievances before. The outcome of one or more of those grievances might have made it clear to the employee that their continued misuse of the grievance procedure would not be tolerated and may result in disciplinary action. Even if the employee wasn’t informed of that, it’s sensible to check your grievance procedure: there may be a paragraph or two that make it clear that misuse of the grievance procedure may result in disciplinary action, giving you a platform to move forwards to that action.

In the absence of a plausible explanation for the behaviour, your next decision is the sanction. Summary dismissal for gross misconduct is possible, but a bold move, and not one that an employer should take lightly, particularly where the employee has more than two years’ service. That didn’t stop the employer in Hope v British Medical Association from dismissing for gross misconduct, in a case which shows how multiple grievances can get out of hand. Note that this case is due to be considered by the Court of Appeal later this year, and it’s hoped that their judgment will provide some clarity on dismissal of employees in this situation.

Hope v British Medical Association

Mr Hope was a serial complainer. He raised several grievances over several months, after accusations from a more senior colleague that he was “unprofessional and dismissive” in an email about another colleague, Ms Dunn. After many months and many grievances, Mr Hope said he did not wish to pursue the matters formally then, but wanted to retain his ability to do so.  He was given a deadline to continue or withdraw. This prompted another grievance regarding what he described as the “arbitrary deadline”, and a further grievance against Ms Dunn, who in turn expressed concerns that she was being bullied.

Mr Hope wanted his line manager to deal with the issues informally. That was impossible as the grievance involved more senior management. Mr Hope also declined proposed meetings with Ms Dunn. He was informed that continued abuse of the grievance procedure could result in disciplinary action. This prompted a further grievance, this time to the Chair of the BMA.  Mr Hope was informed that if there was no informal resolution, the matter would proceed to a formal grievance hearing. This prompted another grievance, about the threat of disciplinary action. He then refused to attend the formal grievance hearing, which proceeded in his absence and concluded that his conduct was “frivolous and vexatious”, and an abuse of process due to his repeated raising of grievances without following them through. His grievances were dismissed and disciplinary action was commenced, conducted by external counsel. Mr Hope was dismissed for gross misconduct, and brought an unfair dismissal claim.

The tribunal held that the dismissal was fair. He was dismissed because of his conduct, a fair reason for dismissal, and there had been a reasonable investigation and procedure. The dismissal was within the band of reasonable responses. Mr Hope appealed. The EAT observed that Mr Hope had repeatedly raised grievances that were not informally resolved, but which he had tried to keep alive without pursuing them. His fear that his grievances would be “closed off” if they went to the formal stage was insufficient: the grievance procedure was to resolve concerns, not to provide a holding space for them until he wished to resurrect them. It was clearly permissible for the tribunal to find that the BMA had acted within the range of reasonable responses when it concluded that attempts to misuse that procedure were frivolous and vexatious. We await the Court of Appeal’s view with interest, as it will hopefully shed light on whether an employer can treat repeated grievances as a disciplinary matter and how far that can be enforced.

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If you are a member of the HR Inner Circle, read our book on Dismissing Problem Employees for a more in depth look at this area:  https://members.hrinnercircle.co.uk/employment-law-library