Warning: Failure to follow a grievance procedure may amount to a breach of trust and confidence

An employer’s failure to follow its own grievance procedure may be found to amount to a breach of the implied term of trust and confidence following the recent EAT decision in Blackburn –v- Aldi Stores Ltd.

Further, such a failure may be found to form the basis for a constructive dismissal claim, even where the policy is stated to be non-contractual and there is no breach of an express contractual term.

Whilst the EAT made a distinction between minor failings which would not necessarily contribute to a breach of the implied term (such as a failure to stick to a relatively time timescale), employers will nonetheless need to ensure they are well versed and compliant with their grievance policy, or they could risk facing a constructive dismissal claim.

In 2009, Mr Blackburn presented a grievance letter alleging that his manager had sworn at him on more than one occasion and raised issues with health and safety and training. Aldi’s Regional Managing Director dealt with the grievance, which was partially upheld in relation to the health and safety and training issues. However, it was held that Mr Blackburn’s manager did not swear at him. Mr Blackburn appealed this outcome in line with Aldi’s written grievance procedure, which provided that an appeal should be made to the next level of management.

In spite of this, the appeal was dealt with by the same Regional Managing Director who heard the grievance.  After brief consideration (a 20 minute meeting with Mr Blackburn), the appeal was rejected. Mr Blackburn resigned a few days later and brought a claim for constructive unfair dismissal on that basis that Aldi had breached the implied term of trust and confidence by not allowing him an appeal against the grievance outcome in line with its grievance procedure.

In the first instance the Tribunal held that there was no constructive dismissal as the Regional Managing Director had given sufficient consideration to his grievance at the first stage. It was found that Aldi’s failure to direct the appeal to the next layer of management or indeed allow anyone other than the same Regional Managing Director to hear Mr Blackburn’s appeal was not a breach of contract.

On appeal the EAT found that the Tribunal had erred in law by not making a determination as to whether Aldi had denied Mr Blackburn a proper appeal and whether this could amount to a breach of the implied term of trust and confidence.

The EAT considered that in line with existing case law the failure to adhere to a grievance procedure is capable of amounting to, or contributing to, a breach of the implied term of trust and confidence, although the failure to comply should be judged on the specific facts of each case.

In this case the EAT said that the right to an appeal was an important feature both of Aldi’s own grievance procedure and the ACAS code, which provides that appeals should be deal with impartially and where possible, by a manager that has not already been involved in the grievance. The EAT believed that Aldi’s policy, like the Acas code, also sought to ensure appeals were heard by independent people in providing that they should be heard by the next level of management. The EAT has now remitted the case back to the Tribunal to consider afresh.

This case therefore emphasises the importance of employers following their own policies.

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