The claimant in Blackburn v Aldi Stores Ltd raised a grievance about a number of issues, including health and safety, training and an allegation that a deputy manager had sworn at him on two occasions. The employer's written grievance procedure required grievances to be handled by a section manager, with appeals to be notified to the next level of management in writing.
The grievance was handled by the regional managing director (RMD) who accepted certain aspects but rejected the allegations of abuse. The claimant appealed against the decision in a letter to the RMD, with a copy to the group managing director. The RMD dismissed the appeal after a 20 minute meeting.
The claimant resigned and brought a claim for constructive unfair dismissal, arguing that the employer had breached the implied duty of trust and confidence by, among other things, denying him a proper appeal against the grievance decision, given that the same person had heard both the original grievance and the subsequent appeal.
The Employment Tribunal concluded that reasonable consideration had been given to the grievance and rejected his claim. The EAT decided the Tribunal had been wrong to disregard what had taken place at the appeal hearing, commenting that the right to an impartial appeal is an important feature of the Acas Code of Practice on Disciplinary and Grievance Procedures and that an organisation of the size of the employer should be able to provide an independent hearing by a manager not previously involved in the case.
The EAT went on to confirm that, depending on the level of breach, a failure to adhere to a grievance procedure is capable of amounting to or being part of a breach of the implied term of trust and confidence, allowing an employee to resign and claim constructive unfair dismissal. This is in fact what happened in a case we covered earlier this year, Five Elms Medical Practice v Hayes - an employee who had resigned as a result of the way that her employer had handled complaints about her was found to have been constructively dismissed. The tribunal in that case concluded that the way in which a meeting to discuss the complaints had been handled, combined with the failure to deal with a subsequent informal grievance in a timely way, amounted to a breach of the implied duty of trust and confidence.