Constructive Dismissal: Failure to Provide Impartial Grievance Appeal Process Blackburn v Aldi Stores Ltd The Employment Appeal Tribunal (EAT) has held that an employer’s failure to consider an employee’s appeal impartially, could amount to a breach of the implied term of trust and confidence. The Employment Rights Act 1996 provides that dismissal can occur where the contract is terminated by the employer or, by the employee, in response to the employer’s conduct. The second type of dismissal is what has come to be known as ‘constructive dismissal’. Case law which has developed in this area, tells us that an employer must not, without reasonable and proper cause, conduct itself in a manner calculated or likely to seriously damage or destroy the relationship of trust and confidence between the parties. This is the so-called implied term of trust and confidence. A breach of an implied contractual term has the same effect as a breach of an express (written) term and will provide the basis for a constructive dismissal claim. The breach of the implied or express term must be fundamental. In other words, the breach must go to the root of the contract so as to destroy it. The breach of itself does not end the contract. Generally, for a constructive dismissal claim to be successful, the employee must resign in response to the breach and in so doing, bring the contract to an end. The employee must also not delay too long before accepting the breach as otherwise; an Employment Tribunal may be entitled to find that the employee has waived the breach and accepted the status quo. This case concerns the failure by the employer (Aldi) to adhere to its grievance procedure. The Employment Tribunal hearing the case, made a mistake in finding that in the absence of a breach of an express term, what took place at an appeal hearing was irrelevant. Mr Blackburn worked as a driver for Aldi. In June 2009, he presented a grievance concerning health and safety issues, lack of training and his alleged mistreatment by the deputy transport manager who apparently swore at Mr Blackburn on two occasions. Aldi’s written grievance procedure provided that grievances must be handled by a section manager and that any appeals were to be notified to the next level of management in writing. Mr Blackburn’s grievance was heard by the regional managing director. He rejected the allegations of abuse by the deputy transport manager. Mr Blackburn appealed and the same regional managing director then heard the appeal. He dismissed the appeal after a meeting which lasted just 20 minutes. Mr Blackburn resigned asserting constructive unfair dismissal. He argued that Aldi had denied him a fair appeal. The Employment Tribunal hearing the case at the first instance rejected his claim. It found that health and safety concerns were largely historic and that the regional managing director had given proper consideration to Mr Blackburn’s grievance. It reached no findings about the appeal hearing. Mr Blackburn appealed to the EAT which held that the right to an impartial appeal is an important feature of the ACAS Code and was also (in this case) part of the employer’s own procedure. What was important here was that the EAT was not convinced that a large employer like Aldi had been unable to provide an impartial hearing by a manager not previously involved. More importantly, the EAT found that failure to adhere to a grievance procedureiscapable of amounting to, or at the very least, contributing to a breach of the implied term of trust and confidence. Whether it does so in a particular case is of course a question of fact for the Tribunal to assess. Each case will turn on its merits. Failing to deal with a grievance process quickly may not amount to a breach, whereas a complete failure to respond to a grievance is likely to do so. What the Employment Tribunal had failed to do in this case was make findings of fact about the appeal hearing. It failed to consider whether the appeal hearing amounted to conduct calculated or likely to destroy, or seriously damage, the relationship of trust and confidence. The EAT found that failure to allow an impartial appeal of a grievance decision may amount to a breach of the implied term of trust and confidence. This is a salutary lesson to employers who fail to deal with grievances properly. It was notable in this case, that Aldi is a large employer and as such the EAT gave it far less latitude than it might have done with a smaller organisation. Even so, it is always better wherever possible to ensure that each stage of an internal process (be it a disciplinary or grievance process) is heard by an independent person.
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