Summary: Can the failure to provide an impartial grievance appeal procedure lead to a successful constructive unfair dismissal claim?
Yes, says the EAT in Blackburn v Aldi Stores Ltd.
Facts: Mr Blackburn was employed by Aldi as an LGV driver at its Chelmsford depot. He raised a grievance about a number of issues, including health and safety, training and an allegation that a deputy manager had sworn at him on two occasions. Aldi’s written, but non-contractual, grievance procedure required grievances to be handled by a section manager, with appeals to be notified to the next level of management in writing.
Mr Blackburn’s grievance was handled by the regional managing director, Mr Heatherington. Mr Heatherington accepted certain aspects of Mr Blackburn’s 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. This was not in accordance with Aldi’s grievance procedure.
Mr Blackburn resigned and brought a claim for constructive dismissal. The Tribunal held that the employer’s duty in relation to the implied term of trust and confidence is to allow the grievance to be heard, it did not extend to compliance with any set procedure.
The EAT overturned the Tribunal’s decision and held that Aldi’s failure to follow its own grievance appeal procedure could entitle Mr Blackburn to resign, even though the grievance procedure was non-contractual. The EAT decided the Tribunal had been wrong to disregard what had taken place at the appeal hearing, commenting that the right to an impartial appeal is an important feature of the ACAS Code of Practice on Disciplinary and Grievance Procedures and that an organisation of the size of Aldi should be able to provide an independent hearing by a manager not previously involved in the case.
The case was remitted to the Tribunal to determine whether or not, on the facts, Aldi’s failure to follow its appeal procedure had in fact amounted to a fundamental breach.
Implications: This is a good reminder to employers to follow their own grievance procedures and the ACAS Code at all stages of a grievance process. Failure to do so, even where the grievance procedure is non-contractual, could expose employers to constructive dismissal claims.