The recent Employment Appeal Tribunal decision in Blackburn v Aldi Stores Ltd UKEAT/0185/12/JOJ has given employers a stark reminder that failure to accord with an impartial grievance appeal process may result in a breach of the implied term of trust and confidence, potentially affording employees the right to bring a claim for constructive dismissal.
Mr Blackburn raised a grievance against Aldi. In accordance with the company's written grievance procedure, the grievance was heard by a regional managing director who accepted some of Mr Blackburn's complaints and rejected others.
Mr Blackburn appealed the decision, which was subsequently heard by the same managing director, rather than a member of the next level of management which would have been the case had Aldi's own grievance procedure (and the Acas Code of Practice on Disciplinary and Grievance Procedures) been properly followed.
Following confirmation of the original grievance outcome, Mr Blackburn resigned and claimed constructive dismissal, citing a breach of the implied term of trust and confidence by Aldi. Mr Blackburn's basis for the alleged breach was that Aldi, in failing to adhere to its grievance procedure, had effectively denied him a proper appeal.
Initially, in holding that there was no constructive dismissal, the employment tribunal made no finding as to whether a breach of the grievance procedure had amounted to a breach of the implied term of trust and confidence. It focussed instead on the substance of Mr Blackburn's grievance and Mr Blackburn's failure to argue that the handling of the grievance may have been a breach of an express contract term (an amendment which he sought to introduce but which the tribunal refused to allow on the basis that it was too late).
On appeal, the EAT found that the employment tribunal should have considered whether the failure to follow the procedure was a breach of the implied term, and by failing to do so did not properly discharge its duties. The case has therefore been sent back to the employment tribunal for it to re-consider that issue (as well as the refusal to allow the amendment).
It is for the tribunal to decide, on the facts, whether Aldi's failure to provide an impartial appeal amounted to a breach of the implied duty of trust and confidence. However, the EAT made it clear in its decision that such a failure is capable of amounting to a breach and that it therefore could form the basis for a constructive dismissal.
The case is a reminder to employers that:
- Care should be taken to ensure that grievance (and disciplinary) procedures are not incorporated into employment contracts, by making clear that such procedures are non-contractual.
- A grievance procedure should comply with the minimum standards set out in the ACAS Code. The minimum standards require, wherever possible, that employees have the right to an impartial appeal; and
A failure to follow such procedure may amount, or contribute to, a breach of the implied term of trust and confidence. (It is also worth noting that a failure to comply with the ACAS Code may lead to an uplift in compensation of up to 25% in a subsequent successful claim.)
How to handle a grievance
So how should employers handle a grievance? The following is a brief step by step outline of the process. Employers should also refer to the Acas Code and their internal grievance procedure.
Step 1: Receiving a formal grievance. If informal attempts to resolve a grievance have failed, or if the employee has chosen to issue a formal grievance without addressing informally first, the first step will be when the employer receives a written grievance. This should be acknowledged promptly.
Step 2: Investigate the grievance. Provided the grievance contains sufficient detail, the employer should then conduct an investigation to establish the facts. This may include interviewing other employees who may have relevant information (remembering to retain confidentiality) and considering any relevant documents or correspondence. The employer may need to meet with the aggrieved employee before embarking on the investigation, to obtain further details of the grievance.
Step 3: Invite the employee to a meeting to discuss the grievance. The employee should be told of their right to be accompanied to the meeting The grievance meeting is an opportunity for the employee to put their side forward before a decision is made. Written notes should be kept of the meeting.
Step 4: Make a decision. A decision needs to be taken as to whether or not to uphold the grievance, in whole or in part. The decision, and the reasons for it, should be communicated clearly and promptly, in writing, and the employee should be told of their right to appeal. The decision should set out what action, if any, the employer intends to take to resolve the grievance. Any action that is taken should be monitored to ensure that it deals effectively with the issues.
Step 5: Appeal. An appeal should be conducted by a manager who is impartial, who has not previously been involved in the matter and who, ideally, is more (and at the very least not less) senior than the manager who heard the grievance. The employee again has a right to be accompanied to any appeal meeting.