An employer cannot insist on compliance with the express provisions of its grievance procedure where this would be likely to seriously damage an employee's health.

In a recent case the employer's contractual grievance procedure required an employee to raise any grievance in a meeting with his line manager, even where it concerned that manager. The employee had become ill due to a breakdown in her relationship with her line manager and it was reasonably foreseeable that applying the procedure would be likely to aggravate her stress-related illness. The EAT ruled that insisting on compliance with the procedure was a breach of the implied duty of trust and confidence, which it thought could in very exceptional circumstances override an express contractual term (eg where a face to face meeting would be seriously psychologically damaging).

This decision reinforces best practice that grievance procedures should provide for an alternative person to whom to complain about the person who would normally deal with the grievance. It is also an interesting example of how the tribunals are increasingly prepared to use implied terms to temper express ones. (GMB Trade Union v Brown, EAT)