Decision: The EAT has held that, in some circumstances, a failure to follow a grievance procedure could amount to a breach of the implied duty of mutual trust and confidence. In this case, the employer’s failure to escalate an appeal to the next level of senior management was capable of breaching this implied term. The EAT held that not every breach of the grievance procedure would be capable of having this effect. Failing to stick to a short timetable would not necessarily contribute to a breach of mutual trust and confidence but a wholesale failure to follow due process might do.

Impact:  Employers may not fully comply with their own internal procedures. Timescales can be missed or varied, particularly in grievance and disciplinary situations. The person specified in the procedure may not be available to take part in the process.  It is important to follow the relevant procedures as far as possible as a serious breach could lead to a constructive dismissal claim.  It may be possible to depart from the internal process but employers should consider this carefully and explain their rationale to the employee.

Blackburn v Aldi Stores Limited