UK: Failure To Provide An Impartial Grievance Appeal Could Amount To Constructive Dismissal

In Blackburn v Aldi Stores Ltd, the EAT has recently considered whether there was a breach of the implied term of mutual trust and confidence when an employer failed to provide an impartial grievance appeal.

Mr Blackburn raised a number of issues in a grievance which was dealt with by his regional managing director, Mr Heatherington. Some aspects of his complaint were upheld, but a grievance relating to mistreatment by a manager was rejected. Mr Blackburn appealed. Although Aldi's grievance procedure stated that this appeal should have been dealt with by the next level of management, it was again heard and rejected by Mr Heatherington. Mr Blackburn resigned and brought a claim for constructive unfair dismissal, arguing that Aldi had breached the implied term of trust and confidence by failing to provide an impartial appeal for his grievance.

The Employment Tribunal dismissed his claim on the basis that a failure to provide an impartial grievance appeal could not amount to a breach of the implied term of trust and confidence. However, the EAT overturned this decision, holding that it was wrong in law. The ACAS Code of Practice on Disciplinary and Grievance Procedures states that grievance appeals should be dealt with impartially, by someone not previously involved in the case. This right was also included in Aldi's own grievance procedure. The EAT noted that, given Aldi's size and resources, it was difficult to see why Mr Blackburn's grievance appeal had not been dealt with properly. The case was remitted back to the Tribunal to reconsider whether Aldi's failure amounted to a breach of the implied duty of mutual trust and confidence. This should involve consideration of the test in Malik v BCCI (1998): did the employer, without reasonable and proper cause, conduct itself in a manner likely to destroy or seriously damage the relationship of trust between employer and employee.

This case confirms that failing to follow a fair and proper grievance procedure could amount to a breach of the implied term of trust and confidence. Whether there is actually a breach will be determined by a Tribunal looking at the facts of each case, and the nature and extent of the breach. Minor breaches, such as a short delay in the process, are unlikely to justify a claim.

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