Does Size Matter?
Author: Matthew Kilgannon
In Blackburn –v– Aldi Stores Limited the Employment Appeal Tribunal (EAT) considered whether an employer’s failure to provide an impartial grievance process could amount to a breach of the implied term of trust and confidence, and form the basis of a constructive dismissal claim.
Background
The employee, Mr Blackburn, submitted a written grievance to his employer, Aldi Stores Limited (“Aldi”). He raised serious issues about health and safety and its impact on his role (an LGV driver), lack of training and mistreatment by his deputy transport manager. The manager had apparently abused him and sworn at him on two occasions.
Mr Blackburn’s grievance, as per the company’s written grievance procedure, was heard by a regional managing director, Mr H. Mr H, upon hearing all of the employee’s concerns and evidence, decided to accept all of Mr Blackburn’s complaints save for those relating to abuse.
Mr Blackburn was dissatisfied with the decision and exercised his right to appeal. Subsequently, Mr Blackburn’s appeal was heard by Mr H. This took place even though the company’s grievance procedure provided that the next level of management should have addressed the matter.
Following confirmation of the original grievance outcome, Mr Blackburn resigned. He claimed constructive unfair dismissal. He alleged that Aldi had breached the implied term of mutual trust and confidence by failing to adhere to its grievance procedure, which had effectively denied him a fair right of appeal.
Employment Tribunal Decision
The Employment Tribunal found against Mr Blackburn. Whilst it noted that someone other than Mr H should have addressed Mr Blackburn’s appeal, it was, in its opinion, irrelevant to the issue of trust and confidence.
EAT Decision
Mr Blackburn appealed. On appeal, the Employment Appeal Tribunal took a different view. It held as follows:
- Mr H should not have heard Mr Blackburn’s appeal as it was not only against the company’s procedure but also the ACAS Code of Practice on Disciplinary and Grievance Procedures.
- It “was not easy to see” why an organisation of “Aldi’s size” was unable to provide an impartial hearing.
- A failure to adhere to a grievance procedure is capable of amounting to or contributing to a breach of the implied term of mutual trust and confidence.
- When an Employment Tribunal is invited to consider whether there has been a breach of the implied term of mutual trust and confidence it must assess what has actually taken place.
What does this mean for you?
The EAT decision serves as a useful reminder to employers. They should, where possible, follow their grievance (and indeed disciplinary) procedure, as well as the ACAS Code of Practice on Disciplinary and Grievance Procedures.
By doing so, it should prevent or avoid claims. Insofar as appeals are concerned, they should ideally be handled by a more senior manager who can exercise independent judgment and who does not feel obliged to uphold the original decision. This will be a greater issue for larger employers that have the resources to provide more senior managers to hear appeals.
So, in summary, yes size does matter. Larger employers will be expected to do more. Your size and administrative resources remain factors Tribunals should consider. On a final note, if you feel your existing grievance and disciplinary procedures and practices could, potentially, give rise to complaints being made about unfairness, breach of contract etc. you should seek advice.
For further information, please contact Matthew Kilgannon, either by telephone on 01483 411517 or by email m.kilgannon@downslaw.co.uk.
