Failure to Allow Grievance Appeal to Different Manager May Give Grounds for Constructive Dismissal

The EAT has held that an employer’s failure to stick to its grievance procedure can amount to a breach of the implied term of trust and confidence, giving an employee grounds for constructive dismissal.

In Blackburn v Aldi Stores Ltd, B raised a grievance which was upheld in part by the regional managing director, H. B appealed against H’s finding that the deputy transport manager had not sworn at him. The grievance procedure provided for an appeal to be notified to a different manager, but did not expressly state that the appeal was to be heard by a different manager. H dealt with the appeal himself and dismissed it. B resigned and claimed constructive unfair dismissal arguing that the employer had breached the implied term of trust and confidence by effectively denying him a proper appeal (as H had heard both the original grievance and the subsequent appeal).

The tribunal dismissed his claim and he appealed to the Employment Appeal Tribunal. The EAT held that the tribunal should have considered whether B had been denied a proper appeal and, if so, whether this amounted to a breach of the implied term of trust and confidence. A failure to adhere to a grievance procedure is capable of amounting to a breach of the implied term, depending on the seriousness of the failure. A failure to stick to a short timetable for dealing with the grievance will not breach the implied term but a wholesale failure to respond to a grievance may do so. 

It remitted the case to the employment tribunal to reconsider the matter. 

Grievance procedures are not normally contractual in nature, meaning that a failure to comply will not amount to a breach of any express terms of the employment contract giving grounds for a constructive dismissal claim. This case demonstrates that employees may nonetheless still be able claim constructive dismissal where there has been a failure to adhere to the terms of a grievance procedure, if the failings are seriousness enough to amount to a breach of the implied term of trust and confidence. 

The EAT noted that the ACAS Code provides for a right of appeal to someone not previously involved and that this is an important feature of a fair process. Whether a failure to allow for an appeal to be heard by a different manager amounts to a breach of the implied term will depend on the facts of each, including the size of the employer and its ability to provide an independent senior manager. In this case, the EAT said that it was "not easy to see" why an organisation of Aldi's size was unable to provide an impartial hearing by a manager not previously involved.