The Employment Appeal Tribunal ("EAT") found that an employer's failure to provide an impartial grievance appeal process could amount to a breach of the implied term of mutual trust and confidence, depending on the seriousness of the failure.

Background

The ACAS Code of Practice (the "Code") sets out best practice guidance for employers on how to deal with grievance and disciplinary issues in the workplace. In relation to appeals, the Code states that an employee should be informed of their right of appeal and any appeal should, ideally, be dealt with impartially and by someone who was not involved in the earlier stages of the relevant process.

Failure by an employer to follow the Code does not give rise to any specific claim from an employee, although it may lead to an increase in compensation of up to 25 percent if the subject matter of the grievance gives rise to a claim.  Many employers will also take care to avoid their grievance procedures having contractual effect.  However, the duty of trust and confidence is implied in all contracts of employment.   The case of Malik v Bank of Credit & Commerce International SA defined the implied term as being that "an employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employer."

Blackburn v Aldi Stores Limited

Mr. Blackburn was employed by Aldi Stores as a LGV driver at the Chelmsford store. In 2009, Mr. Blackburn raised a grievance which related to, amongst other things, perceived health and safety breaches, a lack of training and mistreatment by a manager.

Aldi's own grievance procedure provided that grievances should be handled by a section manager and that any appeals should be escalated to the next level of management.

The grievance was originally heard by Mr. Hetherington, the regional managing director. Mr Hetherington upheld some of Mr. Blackburn's complaints but dismissed his allegations of verbal abuse by his manager. Mr. Blackburn appealed against Mr Hetherington's decision in writing, which was copied to the group managing director.  Mr Hetherington was then appointed to hear the appeal. The appeal meeting was concluded in approximately 20 minutes and Mr Blackburn's appeal was subsequently dismissed.  There was a conflict of evidence as to what had been said at the meeting.

Mr Blackburn resigned and brought claims in the Tribunal for constructive dismissal, arguing that Aldi's failure to afford him an impartial grievance appeal was a breach of the implied term of mutual trust and confidence. 

The Tribunal rejected Mr Blackburn's claim of constructive dismissal.  It held that Mr Hetherington had given due consideration to Mr Blackburn's grievance and the implied term of trust and confidence does not require an employer to go through any set procedure in relation to a grievance, provided the employer hears the complaint and gives reasonable consideration to it.  Mr Blackburn appealed to the Employment Appeal Tribunal.

Decision

The EAT upheld the appeal and remitted the case back to the same Tribunal to make further findings in relation to the way in which the appeal process was conducted.

The Tribunal had been mistaken in determining that the employer's behavior in relation to Mr Blackburn's appeal was irrelevant to his claim for a breach of the implied term, and in particular:

  • a failure by an employer to follow their own grievance procedure can amount, or contribute, to a breach of the implied term. However, whether or not such a failure will breach the implied term will depend upon the nature and gravity of the breach.  Failure to comply with short timetables set out in a grievance procedure will not necessarily contribute to, still less amount to, a breach of trust and confidence.  In contrast, it is not difficult to see that a wholesale failure to respond to a grievance may amount to or contribute to a breach of the implied term;
  • the right to an impartial appeal is an important employee right and is enshrined in the Code and also the employer's own procedure. The EAT took into account the size and resources of Aldi and saw no reason as to why Aldi could not facilitate an impartial appeal process;
  • where an allegation is made in relation to a breach of the implied term of mutual trust and confidence, the Tribunal's duty is to assess the employer's behaviour in light of the test set out in Malik (see above). In this instance, the Tribunal should have made findings of fact in relation to the appeal hearing to establish whether or not this amounted to a breach of the implied term on the basis that this was a core part of Mr Blackburn's claim.

Comment

The EAT's decision confirms that, even where a grievance procedure is not contractual, a breach by an employer of its own grievance procedure and/or of the ACAS Code can potentially amount, or contribute, to the breach of the implied term of mutual trust and confidence giving rise to a potential claim for constructive dismissal. Whether or not a failure/ breach will amount to a breach of the implied term will be a question of fact and degree and taking into account the size and resources of the employer.