Grievance appeal failure could be breach of trust and confidence

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The Employment Appeal Tribunal ("EAT") has ruled in Blackburn v Aldi Stores Ltd that an employer's failure to adhere to a grievance procedure may amount to or contribute to a breach of the implied term of trust and confidence entitling an employee to resign and bring a claim for constructive unfair dismissal.

The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the minimum procedure employers should follow when dealing with grievances. It makes clear that appeals should be dealt with "impartially" and, where possible, by an individual who has not previously been involved in the grievance.

Mr Blackburn worked as an LGV driver for Aldi. In 2009, he submitted a grievance raising health and safety concerns and alleging mistreatment by the deputy transport manager. Aldi's grievance procedure required grievances to be handled by a section manager with any appeals being notified in writing to the next level of management.

The grievance was heard by the regional managing director, Mr Heatherington who upheld some but not all of the grievances. Mr Blackburn appealed, sending his letter of appeal to Mr Heatherington, and copying it to the group managing director. Mr Heatherington subsequently heard the appeal and dismissed it during a 20 minute meeting. Mr Blackburn resigned and brought a claim for constructive unfair dismissal.

Mr Blackburn argued that by allowing Mr Heatherington to deal with both the grievance and the subsequent appeal he had been denied a proper appeal and this was a breach of the implied term of trust and confidence. He subsequently sought to amend his claim to include an allegation that the process had been a breach of an express as well as an implied term but this application was denied.

At first instance, the tribunal rejected Mr Blackburn's claim suggesting that the handling of the appeal process may have been a breach of an express term but that it was irrelevant to a case concerning an implied term of trust and confidence. Mr Blackburn appealed.

The EAT allowed Mr Blackburn's appeal, overturning the tribunal's decision. The EAT held that Aldi's failure to provide an impartial grievance process could amount to or could contribute to a breach of the implied term of trust and confidence. It did, however, state that this would depend upon all the facts and circumstances of the case including whether the employer conducted itself in a manner "likely to destroy or seriously damage" the employment relationship is the test set out in Malik v Bank of Credit Commerce International SA. The EAT referred the case back to the tribunal for determination.

This is an important reminder of the need for appeals to be dealt with by someone other than the person who heard the grievance if at all possible, and to deal with grievances impartially, in accordance with company grievance procedures and the ACAS Code. This is not only best practice but will also minimise the risk of any claim for constructive unfair dismissal succeeding.