In a stark reminder to employers about the risks of failing to provide an impartial grievance appeal process, the Employment Appeal Tribunal (EAT) held in a recent case (Blackburn v Aldi Stores Ltd UKEAT/0185/12), that such a failure could amount to a breach of contract and that the employee could potentially claim constructive unfair dismissal in these circumstances.

While each case will inevitably turn on its facts, and the degree of the failure will prove an important factor, this case sends a clear message to employers that:

  • Grievance procedures should at least meet the minimum standards contained within the ACAS Code. This includes, so far as is practicable, (depending on the size and resources of the employer) the right for an impartial appeal;
  • A failure to comply with the ACAS Code could lead to a 25% uplift in any compensation awarded in a successful claim and could also amount (or at least contribute to) a breach of the implied term of trust and confidence, which forms the basis of many constructive unfair dismissal claims; and
  • It should be clear that grievance procedures (and disciplinary procedures) are non-contractual and are not incorporated into any employee’s terms and conditions to minimise the risk of an additional claim for breach of an express contractual term if the grievance procedure is departed from.

Facts

The claimant, Mr Blackburn, was employed as an LGV driver for Aldi. He submitted a grievance against Aldi raising concerns about health and safety, a lack of training and alleging mistreatment by a deputy transport manager.

Aldi’s grievance procedure stated that grievances should be handled by a section manager and it was arranged that the grievance would be dealt with by the Regional Managing Director. Some aspects of the grievance were upheld while others were rejected and the claimant appealed the decision.

Under Aldi’s grievance procedure, the appeal should have been handled by a member of the next level of management but, in this case, it was dealt with by the same person who had handled the original grievance. The appeal lasted only 20 minutes and was dismissed with very little, if any, analysis of the issues raised.

The claimant resigned and claimed constructive unfair dismissal, relying on a breach of the implied term of trust and confidence. The essence of the claim was that in failing to adhere to its grievance procedure, Aldi had denied him a proper, impartial appeal.

Decision

The EAT held that Aldi’s failure to provide an impartial grievance process (by allowing the appeal to be heard by the same person who heard the original grievance) could amount to a breach of the implied term of trust and confidence meaning that it was possible for an employee to successfully claim constructive unfair dismissal in these circumstances.

The EAT advised that where there is a wholesale failure to respond to a grievance, this could amount or contribute to a breach of the implied term, whereas, a failure to comply with a short grievance timetable, for example, will not necessarily amount to such a breach.

The EAT also made clear that the right to an impartial appeal is an important feature of a grievance process and the ACAS Code and, on these facts, of Aldi’s grievance process. Therefore, it is difficult to see why an organisation of Aldi’s size and resources was unable to provide such an impartial appeal hearing.

Unfortunately, the EAT referred the case back to the tribunal to decide whether or not this particular constructive unfair dismissal claim could succeed on these specific facts. Essentially, the tribunal will need to decide whether Aldi’s actions were calculated to, or were likely in any event to, destroy or seriously damage the relationship of trust and confidence with the employee.

The claimant also sought to argue that Aldi had breached an express term of his contract of employment as his contract referred to the grievance procedure and did not make it clear that it was non-contractual. The EAT have also asked the tribunal to reconsider this point.

How to handle a grievance

Employers should always refer to the ACAS Code and their own internal grievance procedure and comply with these wherever possible to avoid some of the issues Aldi were faced with in this case.

By way of a brief step by step guide, we would advise the following:

Informal first - try to deal with grievances informally in the first instance;

Receipt of first stage formal grievance - if informal attempts to resolve grievances are unsuccessful or if the employee issues a formal grievance with no prior warning, acknowledge receipt of this promptly and, if insufficient detail is provided, request further information;

Investigate - commence an investigation into the concerns raised which may include interviewing relevant employees and/or the employee raising the grievance and considering relevant documentation;

Formal meeting - once you have sufficient information, invite the employee to a formal grievance meeting. This meeting is to allow the employee the opportunity to put forward their version of events prior to a decision being made and the employee should be informed of their right to be accompanied to this meeting. It is strongly advised that employers take written notes of this meeting and, where possible, the employee is asked to sign the notes confirming their accuracy;

Decision - following the formal meeting, the employer should reach a decision to uphold the grievance in whole or in part or to dismissal it entirely. The decision should be confirmed in writing, as soon as is practicable, and the employee’s right of appeal should be clearly stated. If any aspect of the grievance is being upheld, the employer should make clear what action they are going to take to resolve the issues (or what action they have already taken). If the letter contains details of steps the employer is going to take, it is important that these are followed through and that the employer checks to see that these steps are effective;

Appeal - If an appeal is received, this should be dealt with by a manager who has not previously been involved in the matter and, where possible, one who is more senior than the manager who heard the original grievance. As a minimum, the manager hearing the appeal should be at least the same level as the manager who heard the original grievance. The employee has the right to be accompanied to this meeting and this should be made clear to them.

Decision - following the appeal meeting, step 5 should be followed again and the decision letter should make clear that there is no further right of appeal.