Blurred lines in constructive dismissal claims for failure to deal promptly and properly with grievances

by Redmans Solicitors on September 12, 2013

  • SumoMe

The recent Employment Appeal Tribunal case of Blackburn v Aldi Stores Ltd UKEAT/0185/12/JOJ brings to the fore again the fact that employers must properly deal with grievances to ensure that they don’t open themselves up to litigation in the Employment Tribunal

  1. Grievances, constructive dismissal claims and the Employment Tribunal
  2. The recent case of Blackburn v Aldi Stores Ltd
  3. What employers should draw from the above

Grievances, constructive dismissal claims and the Employment Tribunal

It is well-known that employers have a duty to deal properly and promptly with grievances that they receive from employees. In W A Goold (Pearmak) Ltd v McConnell [1995] IRLR 516 two salesmen whose commission-based pay was affected by new sales methods attempted to address the matter with their employer but their grievances were ignored. They resigned and succeeded with a claim for constructive dismissal in the Employment Tribunal, founded on the basis that it is an implied term of the contract of employment that employers will reasonably and promptly deal with any grievances that employees have. Further, employers also have a duty to comply with written grievance procedures (if these are contractual in nature) and any failure to do so could be interpreted to be a breach of an express term of the contract. Expanding upon this point, a constructive dismissal claim could be well-founded if the following occurs (among others):

  1. An employer fails to reasonably adhere to the terms of a written grievance procedure
  2. An employer fails to deal with a grievance at all or in an unreasonably tardy manner
  3. An employer produces an unreasonable outcome to an employee’s grievance
  4. An employer fails to allow the employee to appeal against a grievance outcome

The recent case of Blackburn v Aldi Stores Ltd

The recent case of Blackburn v Aldi Stores Ltd takes the principles above and moulds them slightly. In this case the Claimant had raised a grievance which was heard but rejected. The Claimant appealed and the appeal was heard by the same person who heard the original grievance, even though the terms of the written grievance procedure stated that the appeal should be heard by a different manager to the manager who heard the initial grievance. The appeal was also rejected and the Claimant resigned, submitting an Employment Tribunal claim. The Claimant didn’t originally plead the breach as a breach of an express term of his contract but as the breach of the implied term of mutual trust and confidence. The Employment Tribunal rejected his application to amend the claim at the hearing and his claim failed. He appealed to the Employment Appeal Tribunal and the Employment Appeal Tribunal allowed both grounds of his appeal, one of which was that – regardless of how the claim had been pleaded – the Respondent had denied the Claimant a proper appeal. The Employment Appeal Tribunal commented that the failure to adhere to the written grievance process was not only a breach of an express term but could also be pleaded as constituting a breach of the implied term of mutual trust and confidence.

What employers can draw from the above

The first, and obvious, point is that grievances should be dealt with promptly and reasonably. Although potentially administratively burdensome, employees should be kept up to date on the progress of the grievance process and a reasonably proper and thorough investigation should be carried out to explore the basis of the grievance, with a reasoned outcome being provided to the employee. If an employer fails to deal with a grievance reasonably and promptly then they may be opening themselves up to potentially expensive and time-consuming litigation in the Employment Tribunal.

Chris Hadrill is an employment law solicitor at Redmans.

Redmans Solicitors are employment law solicitors and settlement agreement solicitors based in London

Previous post:

Next post: