A recent case (Blackburn v Aldi Stores Ltd (2013)) in the Employment Appeal Tribunal (EAT) considered whether an employer’s failure to conduct an impartial appeal could be a breach of the implied term of trust and confidence.
The employee, Mr Blackburn, was an LGV driver for Aldi who raised a grievance which included health and safety concerns, his lack of training and the way he was treated by his deputy transport manager. The grievance was dealt with by a regional managing director, Mr Heatherington. Mr Heatherington upheld the grievance in part, but not the part about Mr Blackburn’s treatment at the hands of his manager. Mr Blackburn appealed against this part of the decision.
Aldi’s grievance procedure said that an employee who wished to appeal must do so to the next level of management. Despite this, Mr Heatherington dealt with the appeal himself and rejected the appeal after a short meeting. Mr Blackburn resigned as a consequence of this, claiming that the breach of the grievance procedure effectively denied him the right of appeal. He argued that there had been a fundamental breach of contract entitling him to treat himself as having been dismissed. He brought claims in the Employment Tribunal including constructive dismissal.
The Employment Tribunal decided against Mr Blackburn because they said that an employer’s duty when dealing with a grievance is to allow the employee the opportunity to bring his or her complaint, to have that complaint heard and to give reasonable consideration to it. This does not necessarily mean a set procedure should be followed by an employer, and that this meant there had not been a sufficiently serious breach as to be fundamental.
Mr Blackburn appealed to the EAT. The EAT disagreed with the Tribunal’s decision. The EAT emphasised that the Acas Code provides for an appeal and says that this “should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case.” The EAT said an organisation the size of Aldi should have been able to appoint a new manager to deal with the appeal, and therefore it was possible that the failure to do this could constitute a fundamental breach. The EAT sent the case back to the Tribunal to be considered afresh.
Many employers will have a grievance procedure that specifically states it is not contractual and can be amended at any time. This is highly recommended as it does allow the procedure to be updated without having to consult with employees about changing their terms of employment. However, this does not mean that the procedure can be ignored. The principles of the Acas Code should always be borne in mind. Failure to take into account important aspects of a grievance procedure could potentially constitute a serious breach. The EAT did indicate however that minor breaches are unlikely to constitute a fundamental breach, such as not quite meeting timescales set out in a grievance procedure.
Another important message to note is that it is best to have an independent person consider an appeal, whether in a grievance or disciplinary procedure. Ideally the person should have the authority within the organisation to overturn the original decision if necessary. This is not always practically possible in small organisations, or when disciplinary and grievance issues arise at a high level, but it is important that employers give consideration as to how to ensure as fair a process as possible.
Do you need advice on disciplinary or grievance procedures, or assistance writing them? If you do then please contact any member of the Pure Employment Law team (01243 836840 or [email protected]) to discuss how we can help.