Can failure to deal with a grievance properly lead to a constructive dismissal claim?

The ACAS Code of Practice on Disciplinary and Grievance Procedures provides that grievance appeals "should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case". A failure to follow the ACAS Code will not, in itself, render an employer liable to tribunal proceedings. However, if an employee brings a successful tribunal claim, and the employer unreasonably failed to follow the Code, the tribunal may increase the employee's compensation by up to 25%.

The Facts

Mr Blackburn worked as a lorry driver for Aldi Stores Ltd and raised a grievance about health and safety, lack of training and his mistreatment by the deputy transport manager (who had allegedly sworn at him on two occasions). The grievance was handled by the regional managing director, Mr Heatherington, who accepted certain aspects of the grievance, but rejected the allegations of abuse.

Mr Blackburn appealed against the decision in a letter to Mr Heatherington, copied to the group managing director. Mr Heatherington dismissed the appeal in a meeting which lasted just 20 minutes.

Mr Blackburn resigned and brought a claim for constructive unfair dismissal. One element of his argument was that Aldi had breached the implied term of trust and confidence by effectively denying him a proper appeal against the grievance decision, because Mr Heatherington had heard both the original grievance and the subsequent appeal.

The EAT decision

The EAT found that failing to provide an impartial appeal hearer is capable of amounting to or contributing to a breach of the implied term of trust and confidence, entitling the employee to resign and claim constructive unfair dismissal. This is the position even if the employer's grievance policy does not expressly provide for an impartial appeal hearer.

The right to an impartial appeal in respect of a grievance is a significant right and an important feature of the ACAS Code of Practice. It provides the employee with important protection and, according to the EAT, 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.

As the tribunal had failed to make a proper assessment of the seriousness of the breach, the EAT sent the case back to the tribunal to reconsider.

When will a breach of the ACAS Code amount to a breach of the implied term of trust and confidence?

The EAT decided that failure to adhere to a fair grievance procedure is capable of amounting to or contributing to a breach of the implied term of trust and confidence. Whether it does or not is a matter for the tribunal to assess as "breaches of grievance procedures come in all shapes and sizes". The EAT commented that it would depend on both:

• the size of the employer and its ability to provide an independent senior manager; and
  
• the type of breach - a failure to comply with a short timetable will not necessarily lead to a breach while a wholesale failure to respond to a grievance is likely to.

It may also depend on the seniority of the employee. The more senior the employee the more difficult it may be to find a grievance hearer and appeal hearer at the appropriate levels of management.

In Practice

• Provide employees with the opportunity to appeal a grievance decision to someone who has not previously been involved in the investigation / decision making process (and preferably to someone more senior than the grievance hearer).
  
• If it is not possible for the appeal to be heard by an independent person in a particular case, document why and what steps were taken to ensure that the appeal was nevertheless fair.
• Most grievance policies mirror the terms of the ACAS Code of Practice. Consider amending any policies which do not.
  
• Train managers dealing with grievances on the content and application of the relevant grievance policy (and the ACAS Code of Practice if the policy does not reflect all of the Code).
  
• Make managers aware that a failure to comply with the terms of the grievance policy and the ACAS Code of Practice may, depending on the circumstances, lead to a constructive dismissal claim.
  
• All parts of a grievance procedure should be followed. In this case a significant amount of time had been spent considering the original grievance (witnesses were interviewed and a detailed written response issued) but the appeal stage was effectively overlooked (as well as the wrong person hearing the appeal, there were allegations that Mr Heatherington had behaved aggressively and had failed to allow Mr Blackburn to present his case at the appeal hearing). This was enough to potentially amount to a breach of the implied term of trust and confidence.
  
• Although constructive dismissal claims can be based on a fundamental breach of either an express or an implied term of the employment contract, it is harder for employees to assert that there has been a breach of an implied term. For this reason HR policies should state that they are non-contractual (except to the extent that they impose obligations on employees).