Employers have a reasonable measure of discretion when it comes to handling grievances, according to the EAT in Abbey National plc v Fairbrother. Mrs Fairbrother, who suffers from an obsessive compulsive disorder (OCD), potentially a disability under the DDA 1995, worked for Abbey as a customer manager. In July 2003 she contacted her area manager, Mr McNicholas, to complain about the behaviour of two of her colleagues. She claimed that they had been bullying her, including taunting her about her need for tidiness, and name-calling.

After speaking to Mrs Fairbrother and the two women concerned (and obtaining an apology from them) Mr McNicholas suggested to Mrs Fairbrother that the three women simply “sit down with a cup of tea” to try and resolve the issues between them. He also told Mrs Fairbrother, perhaps unhelpfully in the circumstances, that her colleagues did not think much of her and that she could have been disciplined for leaving work early on 23 July after one of the other women had shouted at her.

Mrs Fairbrother was signed off sick on 29 July. On 13 August she wrote to Mr McNicholas raising a formal investigation into the conduct of her grievance regarding her colleagues’ behaviour and in particular the way in which he had handled the initial investigation.

Abbey launched a formal investigation. Shortly before it was due to report back to Mrs Fairbrother she sent in a statement containing further allegations about conduct on the part of the same two colleagues pre-dating the matters raised in July 2003. Abbey declined to look into these matters as part of her grievance as they had been raised so late and on that basis it agreed with Mrs Fairbrother’s union representative that they should be ignored.

Abbey rejected Mrs Fairbrother’s grievance. At her appeal Abbey agreed to look into the matters raised at the grievance hearing and also the additional matters she had sought to raise subsequently. However, it concluded still that there was insufficient evidence of bullying at any stage and held that Mr McNicholas had not acted inappropriately.

In June 2004 Mrs Fairbrother resigned and claimed both unfair constructive dismissal and disability discrimination. In particular, she claimed that Abbey’s conduct of the grievance procedure amounted to a breach of the implied term of trust and confidence. The Tribunal upheld both complaints, concluding that Abbey had failed to deal with her grievance properly. It was critical of the fact that it had not investigated the events prior to July 2003 at the initial grievance hearing and said that the appeal panel had failed to carry out a sufficiently thorough investigation, not least as a consequence of its failing to interview Mrs Fairbrother and the two other women at all about the new allegations.

The Tribunal also upheld Mrs Fairbrother’s disability discrimination claim on the grounds that she would not have been subjected to the taunts and name-calling had she not suffered from OCD.

The key issue before the EAT on Abbey’s appeal was the quality of its investigation and whether its handling of Mrs Fairbrother’s grievance was so poor as to amount at law to a fundamental breach of contract. According to the EAT, where an employee resigns and claims constructive dismissal in response to the handling of his grievance, a Tribunal should ask itself the following questions:

(a) What was the employer’s conduct that is being complained about?

(b) Did the employer have “reasonable and proper cause” for its conduct of the grievance procedure? If so, any claim for constructive dismissal must fail. In answering this question a Tribunal should ask itself whether the employer’s conduct of the grievance procedure fell within the “band of reasonable responses”.

(c) If not, was the employer’s conduct of the grievance procedure calculated or likely to destroy or seriously damage the necessary trust and confidence between the employer and the employee?

The EAT said that in determining whether or not a grievance procedure had been conducted reasonably, a Tribunal should look at the procedure as a whole, in the same way one would judge the fairness of a disciplinary process (prior to the statutory dispute rules, at any rate). Only if the procedure as a whole had been conducted in a manner which no reasonable employer would have adopted could it be said that the employer did not have Employers have a reasonable measure of discretion when it comes to handling grievances, according to the EAT in Abbey National plc v Fairbrother.

Mrs Fairbrother, who suffers from an obsessive compulsive disorder (OCD), potentially a disability under the DDA 1995, worked for Abbey as a customer manager. In July 2003 she contacted her area manager, Mr McNicholas, to complain about the behaviour of two of her colleagues. She claimed that they had been bullying her, including taunting her about her need for tidiness, and name-calling.

After speaking to Mrs Fairbrother and the two women concerned (and obtaining an apology from them) Mr McNicholas suggested to Mrs Fairbrother that the three women simply “sit down with a cup of tea” to try and resolve the issues between them. He also told Mrs Fairbrother, perhaps unhelpfully in the circumstances, that her colleagues did not think much of her and that she could have been disciplined for leaving work early on 23 July after one of the other women had shouted at her.

Mrs Fairbrother was signed off sick on 29 July. On 13 August she wrote to Mr McNicholas raising a formal investigation into the conduct of her grievance regarding her colleagues’ behaviour and in particular the way in which he had handled the initial investigation.

Abbey launched a formal investigation. Shortly before it was due to report back to Mrs Fairbrother she sent in a statement containing further allegations about conduct on the part of the same two colleagues pre-dating the matters raised in July 2003. Abbey declined to look into these matters as part of her grievance as they had been raised so late and on that basis it agreed with Mrs Fairbrother’s union representative that they should be ignored.

Abbey rejected Mrs Fairbrother’s grievance. At her appeal Abbey agreed to look into the matters raised at the grievance hearing and also the additional matters she had sought to raise subsequently. However, it concluded still that there was insufficient evidence of bullying at any stage and held that Mr McNicholas had not acted inappropriately.

In June 2004 Mrs Fairbrother resigned and claimed both unfair constructive dismissal and disability discrimination. In particular, she claimed that Abbey’s conduct of the grievance procedure amounted to a breach of the implied term of trust and confidence. The Tribunal upheld both complaints, concluding that Abbey had failed to deal with her grievance properly. It was critical of the fact that it had not investigated the events prior to July 2003 at the initial grievance hearing and said that the appeal panel had failed to carry out a sufficiently thorough investigation, not least as a consequence of its failing to interview Mrs Fairbrother and the two other women at all about the new allegations.

The Tribunal also upheld Mrs Fairbrother’s disability discrimination claim on the grounds that she would not have been subjected to the taunts and name-calling had she not suffered from OCD.

The key issue before the EAT on Abbey’s appeal was the quality of its investigation and whether its handling of Mrs Fairbrother’s grievance was so poor as to amount at law to a fundamental breach of contract. According to the EAT, where an employee resigns and claims constructive dismissal in response to the handling of his grievance, a Tribunal should ask itself the following questions:

(a) What was the employer’s conduct that is being complained about?

(b) Did the employer have “reasonable and proper cause” for its conduct of the grievance procedure? If so, any claim for constructive dismissal must fail. In answering this question a Tribunal should ask itself whether the employer’s conduct of the grievance procedure fell within the “band of reasonable responses”.

(c) If not, was the employer’s conduct of the grievance procedure calculated or likely to destroy or seriously damage the necessary trust and confidence between the employer and the employee?

The EAT said that in determining whether or not a grievance procedure had been conducted reasonably, a Tribunal should look at the procedure as a whole, in the same way one would judge the fairness of a disciplinary process (prior to the statutory dispute rules, at any rate). Only if the procedure as a whole had been conducted in a manner which no reasonable employer would have adopted could it be said that the employer did not have