The Employment Appeal Tribunal has ruled that an employer's failure to provide an impartial grievance appeal could amount to a breach of the implied term of trust and confidence.
It is common for employees to rely on a breach of the implied term of trust and confidence by their employer to form the basis of a constructive dismissal claim. Potentially the ways in which an employer may breach such term is limitless. However, the breach by the employer must be "repudiatory" (i.e. sufficiently serious as opposed to just unreasonable behaviour) and the employee must accept such breach without delay when resigning and claiming constructive dismissal.
The ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) provides that grievance appeals,
".should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case".
While the Code is not mandatory, employment tribunals will take its guidance into account when deciding whether or not a dismissal was unfair and may adjust awards made in relevant cases by up to 25% for unreasonable failure to follow the Code.
In Blackburn v Aldi Stores Ltd UKEAT/0185/12, Mr Blackburn was a lorry driver at Aldi's depot in Chelmsford who brought a grievance about various matters. This was handled by Mr Heatherington who was a regional managing director. He accepted some aspects of the grievance but not others. Mr Blackburn appealed, but it was Mr Heatherington who considered the appeal and rejected it.
Mr Blackburn resigned and brought a claim for constructive unfair dismissal. He argued that Aldi had breached the implied term of trust and confidence by denying him a proper appeal against the grievance decision as Mr Heatherington had heard both the original grievance and the subsequent appeal.
An employment tribunal rejected the claim of constructive dismissal. Mr Blackburn appealed to the Employment Appeal Tribunal (EAT).
The EAT upheld the appeal and remitted the case back to the tribunal to re-consider. It held that the right to an impartial grievance appeal is very important and it could not see why an organisation of Aldi's size was unable to provide such a hearing by a manager not previously involved in the case.
This case confirms that failure to adhere to a fair grievance procedure is capable of amounting to or contributing to a breach of the implied term of trust and confidence. However, the EAT stressed that whether it does so in any given case is a matter of fact for the tribunal. For example, in the case of a small employer it may simply be impossible to provide a manager who has not previously been involved in any way. In addition, more minor breaches of a grievance process will not necessarily amount to a breach of the term of trust and confidence.