Grievances, appeals and constructive dismissal – a word of warning from the EAT
The Employment Appeal Tribunal has found that failing to allow an employee to appeal a grievance decision to someone other than the original grievance hearer can be a breach of the implied term of mutual trust and confidence, entitling the employee to resign and claim constructive unfair dismissal.
In Blackburn v Aldi Stores Ltd Mr Blackburn, an HGV driver for Aldi, 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 by the deputy transport manager.
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 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. Whether it does will depend on the facts, including the size of the employer and its ability to provide an independent senior manager.
This means that employers who don’t currently ensure that appeals are heard by someone other than the grievance hearer should review their procedures to see whether this could be achieved. For small employers this may not be possible, but evidence that this has at least been considered should be helpful to an employer if faced with this type of claim.
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