Even when a grievance procedure is not contractual, failure to follow it can amount to a breach of trust and confidence
In Blackburn v Aldi Stores Ltd the EAT had to consider whether failing to provide an impartial grievance appeal hearing could amount to a breach of the implied term of trust and confidence.
Facts
Aldi's grievance procedure required complaints to be handled by a section manager and any appeals to be dealt with by the next level of management. Blackburn lodged a grievance about health and safety, lack of training and his mistreatment by the deputy transport manager. It was heard by Heatherington, the regional managing director, who upheld some aspects but rejected the mistreatment allegation. Blackburn appealed. Contrary to the procedure, Heatherington also heard the appeal, which he rejected.
Blackburn resigned and claimed constructive dismissal. He argued that the appeal process had not been impartial since Heatherington had heard both the grievance and the appeal. Aldi had therefore breached the implied term of trust and confidence automatically incorporated into every contract of employment – that is, that an employer must not, without reasonable and proper cause, act in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust.
Tribunal
An employment tribunal rejected the constructive dismissal claim. The tribunal stated that it was not dealing with a breach of an express contractual term, made no findings fact as to what had happened at the appeal and was simply indicating in general terms that where trust and confidence is an issue with a grievance, the employer must allow the employee to bring his complaint, hear it and achieve a reasonable outcome. Blackburn appealed.
EAT
The EAT upheld the appeal. The tribunal had erred in appearing to think that in the absence of a breach of an express term, what took place at the appeal hearing was irrelevant. That error was compounded by the provision in the ACAS Code of Practice that an appeal should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case. Even where a grievance procedure is not contractual, then a failure to follow it is capable of amounting to a breach of trust and confidence, and so the case would be remitted to the tribunal to decide if such a breach had occurred.
Comment
Where a grievance procedure is contractual and it is not followed, then there is a breach. But whether that breach is fundamental enough to constitute constructive dismissal depends on the facts. However, many employers choose not to make grievance (or disciplinary) procedures contractual to give themselves absolute power to change the rules without having to seek agreement to change the contract, or rely on a contractual flexibility clause. This case provides a very good illustration of when there might be a breach of the implied term of trust and confidence where the procedure is not contractual.
In giving its judgment the EAT provided guidance on failures to follow a grievance procedure which may, or may not, be capable of constituting a breach of trust and confidence. For example, a failure to adhere to a short timetable for dealing with a grievance will not necessarily amount to a breach. On the other hand, a wholesale failure to respond to a grievance may well amount to a fundamental breach, as would failure to provide an appeal, or an impartial appeal, in accordance with the Acas Code. Indeed, as the EAT commented, it was difficult to understand in this case why an organisation the size of Aldi could not have made provision for an impartial manager to hear the appeal.
The case also illustrates how employees and their advisors will look for a failure to follow a grievance procedure, whether contractual or not, upon which to base constructive dismissal claims. That, in turn, reinforces the need for employers to ensure that their procedures are legally and Acas compliant, and that they are followed to the letter.
Makbool Javaid is a partner and head of employment law at Simons Muirhead and Burton
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