Failing to follow your grievance procedure may lead to a breach of your duty of trust and confidence8 August, 2014
The Employment Appeal Tribunal (EAT) has held in the case of Blackburn -v- Aldi Stores Ltd (Aldi) that even where an employer’s grievance procedure is not contractual, they should follow it.
Mr Blackburn raised a grievance to his employer Aldi in accordance with their internal grievance procedure. The grievance procedure did not form part of his contract of employment but was drafted in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code). Mr Blackburn’s grievance was heard by the Regional Managing Director who upheld some aspects but rejected his allegation of mistreatment. Mr Blackburn then appealed the decision and the appeal was heard by the same Regional Managing Director.
This was a breach of both Aldi’s non-contractual grievance procedure and the ACAS Code in that the appeal should have dealt with impartially where possible by an independent Manager not previously involved in the matter. As a result of Aldi’s failure to follow their grievance procedure, Mr Blackburn resigned and claimed constructive unfair dismissal as he alleged that Aldi had breached the implied term of trust and confidence.
The Employment Tribunal (ET) initially rejected Mr Blackburn’s claim as they believed that Aldi had given reasonable consideration to his grievance i.e. they had given Mr Blackburn the opportunity to raise a complaint, hear it and achieve a reasonable outcome. The EAT upheld Mr Blackburn’s appeal stating that the ET should not have focussed on whether there was a breach of an express contractual term. The EAT held that the appeal should have been dealt with impartially by an independent manager not previously involved in the case and that Aldi’s failure to comply with this requirement could amount to a fundamental breach capable of breaching their duty of trust and confidence to Mr Blackburn. The case has been remitted to the ET so that they can decide if such a breach had occurred.
The EAT also gave useful guidance on failures to follow a grievance procedure which could potentially be capable of constituting a breach of trust and confidence. For example, the failure to adhere to a short timetable for dealing with a grievance will not necessarily amount to a breach. On the other hand, a complete failure to respond to a grievance may well amount to a fundamental breach as would a failure to provide an appeal, or an impartial appeal in accordance with the ACAS Code.
We are therefore advising all employers to check that their grievance procedures are drafted in accordance with the ACAS Code and to follow them carefully as this will help to minimise the risk of a claim by an employee for constructive unfair dismissal.