Augustine Clement

• Unfair Dismissal
• Gross Misconduct
• Breach of Contract


Background to Appeal
The claimant brought numerous grievances against senior managers. These were concerned with, amongst other matters, the failure of senior managers to include him in meetings which he thought he should be attending. Management considered that decisions as to who should attend were a matter for them. The grievances could not be resolved at the informal stage, in part because the claimant wished to discuss his grievances informally with his line manager who had no authority to resolve concerns about more senior managers. However, the claimant refused to progress any of the grievances to the formal stage, instead seeking to retain the ability to do so, and neither did he withdraw the grievances. A grievance hearing was fixed but the claimant refused to attend despite being informed that attendance was considered to be a reasonable instruction. The grievance hearing proceeded and the grievances were not upheld. The respondent considered the claimant’s conduct to amount to gross misconduct in that he had brought numerous vexatious and frivolous grievances and had refused to comply with a reasonable management instruction to attend the meeting. He was dismissed. An employment tribunal found that H’s dismissal was fair. It considered that it was reasonable for the Respondent to conclude that Claimant’s conduct was vexatious and unreasonable, and that the Respondent had acted reasonably in dismissing H on that basis.
The claimant appealed. The principal ground of appeal was that the ET had erred in failing to consider whether the conduct relied upon was capable of amounting to gross misconduct in the contractual sense and that the ET’s conclusions were perverse. He submitted that, in accordance with the dictum of His Honour Judge Hand QC in Sandwell and West Birmingham Hospitals NHS Trust v Westwood EAT 0032/09, the tribunal should have considered whether his conduct amounted either to ‘a deliberate and wilful contradiction of the contractual terms’ or ‘very considerable negligence, historically summarised as “gross negligence”’.
The EAT dismissed the appeal. Mr Justice Choudhury, President of the EAT, held that the test for determining whether a dismissal is fair or unfair within the meaning of S.98(4) ERA involves consideration of all the circumstances, which might, in some misconduct cases, include the fact that the conduct relied upon involved a breach of contract amounting to gross misconduct. However, the Westwood case was not authority for the proposition that whenever the label ‘gross misconduct’ is used, a contractual analysis as to whether the conduct amounted to wilful contradiction of the contract or gross negligence is required. The need for the contractual analysis in that case only arose because the misconduct relied upon was said to be in breach of policy, such breach having been contractually stipulated to amount to gross misconduct. In this case, no contractual analysis was necessary: the claim was not one of wrongful dismissal and the Respondent did not seek to rely on any contractually stipulated act as amounting to gross misconduct. The tribunal had been entitled to find that the Respondent had acted reasonably in treating the reason for dismissal, namely the Claimant’s conduct as described, as being a sufficient reason to dismiss in all the circumstances.