In the recent case of Blackburn v Aldi Stores Ltd, the EAT has held that an employer’s failure to adhere to a grievance procedure may be a breach of the implied term of trust and confidence; potentially giving rise to a claim of constructive dismissal claim even where there is no breach of an express contractual term.

In this case, the Aldi Stores employee raised a grievance relating to health and safety, lack of training, and how he was being treated by his manager.  The grievance was investigated by a director and whilst the employee’s grievance was partially upheld, the director accepted the manager’s denial of any inappropriate treatment.  The employee appealed the decision.

Aldi Stores’ grievance procedure stated that any appeal would be held by someone who had not been involved in the case before, which is fairly typical.  However, in this case, the appeal was heard (and subsequently refused) by the same director who had made the original decision.  The employee resigned and raised a claim for unfair constructive dismissal based on the employer’s breach of the implied term of trust and confidence.

The tribunal held that the employer’s duty in relation to the implied term of trust and confidence is to allow the grievance to be heard, it did not extend to compliance with any set procedure.  However, the EAT has now held that the tribunal erred in law by failing to determine whether the employee had been denied a proper appeal and whether this, in turn, was a breach of the implied term of trust and confidence.  The EAT considered that failure to adhere to a grievance procedure was capable of amounting to such a breach, although it did note that a tribunal would need to consider the impact of any failure on a case-by-case basis in order to determine whether it amounted to a breach of trust and confidence.

In reaching its decision the EAT considered the fact that the right to an appeal in respect of a grievance was an important feature of both the ACAS Code of Practice and Aldi Stores’ own grievance policy.  The case has been remitted to the employment tribunal to reconsider.