CM MARCH 2022

HR MATTERS
Unfinished business
The problems that come with not fully committing to a
grievancy process, and a reminder to review practices
and policies for workforce diversity.
IN the recent decision of Hope v
British Medical Association, the
Employment Appeal Tribunal
(EAT) held it was fair to dismiss an
employee for raising numerous
grievances which he then refused
to progress or withdraw.
Mr Hope was employed by the British
Medical Association (BMA) as a senior
policy adviser from June 2014 until 24
May 2019 when he was dismissed for gross
misconduct. The claimant brought several
grievances against senior managers.
He wanted to discuss his grievances
informally with his line manager but
refused to progress them to the formal
stage. He also refused to withdraw them.
A formal grievance meeting was
scheduled for 21 March 2019. The
claimant was asked to attend the meeting
and was told by his employer that it
AUTHOR – Gareth Edwards
considered it was a reasonable instruction
to ask him to attend. Despite this, the
claimant failed to attend, and the meeting
proceeded in his absence. The grievances
were not upheld.
BMA concluded that the claimant's
conduct of bringing numerous vexatious
and frivolous grievances and his refusal
to attend the meeting amounted to gross
misconduct. It took disciplinary action
against the claimant which resulted in his
dismissal.
Both the Employment Tribunal and
the EAT agreed the claimant's dismissal
was fair. It was reasonable for BMA to
conclude the claimant's conduct was
vexatious and unreasonable. It was also
reasonable for BMA to have dismissed
Hope on that basis. It was not necessary
for the employer to demonstrate the
claimant had wilfully committed a
breach of contract, or alternatively
had committed 'gross negligence' to
find he had committed an act of gross
misconduct.
This case demonstrates that employers
do not have to be held hostage by
employees who bring repeated, frivolous
grievances. However, employers finding
themselves in similar situations should
tread carefully to ensure any action they
take is fair and proportionate in the
circumstances. No doubt the employer’s
position in this case was helped by the
clear expectation it communicated to
the claimant that his attendance at
the grievance hearing was considered
a reasonable instruction. The fact the
claimant ignored that instruction would
have been relevant to the legitimacy of
the action the employer subsequently
took.
Disability workforce reporting considered
FIGURES published by the Department
for Work and Pensions have highlighted
the disability employment gap – that
is the difference in the proportion of
disabled versus non-disabled people who
are in employment.
In the second quarter of 2021, the
employment rate for disabled people was
THE Government has published new 'right
to work’ checks which set out changes to
the way in which employers must check
the immigration status of biometric card
holders from 6 April 2022.
Currently, foreign nationals who
hold biometric cards can choose to
demonstrate their right to work in the
UK either by showing an employer their
physical card or sharing their status via
the Home Office’s online service. This
flexibility means that employers and
workers can choose between the relative
simplicity of producing and checking
a physical document in each other's
52.7 percent, compared to 81 percent for
non-disabled people. The Government
has kept the disability employment
gap under the spotlight during the
COVID-19 pandemic and has renewed its
commitment to publishing a consultation
on disability workforce reporting.
The consultation is yet to be published,
presence or sharing immigration status
online without having to meet in person.
The new guidance changes this. From 6
April 2022 holders of biometric cards will
only be able to demonstrate their right
to work in the UK using the Home Office
online service. Employers will no longer
be able to accept physical cards for the
purposes of a right to work check, even
if the card shows a later expiry date. The
new rules will apply to new appointments
only so it will not be necessary to carry out
retrospective checks on employees who
are biometric card holders and used their
physical card to demonstrate their right to
but the trend towards transparency on
employment and pay is likely to continue.
Proactive employers may wish to get
ahead by reviewing their own practices,
access to employment and workforce
diversity to identify what practical steps
might be necessary to recruit and retain
disabled staff.
Changes to Right to Work checks coming
work in the UK before 6 April 2022.
Employers will retain a statutory excuse
against any civil penalty for illegal working
where initial checks were undertaken in
line with guidance that was in force at
that time.
Employers are advised to familiarise
themselves with the online right to work
checking process in advance of these new
rules coming into force.
Gareth Edwards is a partner in the
employment team at VWV
www.gedwards@vwv.co.uk
From 6 April 2022 holders of biometric cards will only be able to demonstrate
their right to work in the UK using the Home Office online service.
Brave | Curious | Resilient / www.cicm.com / March 2022 / PAGE 50