Failure to provide impartial grievance appeal process may breach implied term of trust and confidence

In Blackburn v Aldi Stores Ltd UKEAT/0185/12 the employment appeal tribunal considered whether failure to provide an impartial grievance appeal procedure could amount to a breach of the implied term and trust and confidence.

Background
Constructive dismissal and breach of the implied term of trust and confidence
A breach of an implied contractual term will serve as a basis for a constructive dismissal in the same way as the breach of an express term, provided that the breach in question is “repudiatory”. The most obvious example of this is where the term broken is the implied term of mutual trust and confidence formulated by the House of Lords in Malik v Bank of Credit & Commerce International SA (in compulsory liquidation) [1998], as follows:
"The employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee."
Acas code

The ACAS Code of Practice on Disciplinary and Grievance Procedures (Acas Code) sets out how employers should handle grievances. When communicating a grievance decision to the employee, the employer should inform them that they have a right of appeal. If the employee is not satisfied with the outcome, they should appeal in writing, specifying the grounds of their appeal. So far as is possible, any appeal against, or review of, the dismissal or disciplinary sanction should be dealt with "impartially" by someone not previously involved in the case (paragraph 41, Acas Code).

Facts
Mr Blackburn worked as an LGV driver for Aldi Stores Ltd (Aldi) at its Chelmsford depot. In June 2009, he presented a grievance letter raising issues about health and safety, lack of training and his mistreatment by the deputy transport manager (who had allegedly sworn at Mr Blackburn on two occasions). Aldi's written grievance procedure required grievances to be handled by a section manager and any appeals were 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.

Mr Blackburn resigned and brought a claim for constructive unfair dismissal. He argued that Aldi had breached the implied term of trust and confidence, among other things, by effectively denying him a proper appeal against the grievance decision because Mr Heatherington had heard both the original grievance and the subsequent appeal. He subsequently sought to amend his claim to include breach of an express contractual term on the basis that the grievance procedure was or might be contractual.
The tribunal rejected the claim of constructive dismissal. It held that the health and safety concerns were largely historic and that Mr Heatherington had given reasonable consideration to Mr Blackburn's grievance. However, it reached no findings about what occurred at the appeal hearing. It noted that Mr Blackburn's complaint, that he had not been able to appeal to someone other than Mr Heatherington, might have been a ground on which to bring a claim for breach of an express term. However, it held that this was irrelevant to his case concerning the implied term of trust and confidence.

Mr Heatherington appealed to the employment appeal tribunal

Decision
The employment appeal tribunal allowed the appeal and remitted the matter back to the same tribunal. It directed the tribunal to make findings of fact about the appeal hearing in order to enable it to determine whether or not there was a breach of the implied term of trust and confidence.
Failure to allow appeal of a grievance decision to a different manager may breach trust and confidence
The employment appeal tribunal held that the tribunal had erred in law in concluding that, in the absence of an allegation of breach of an express term, what took place at the appeal hearing was irrelevant. It held that:
•    The right to an impartial appeal in respect of a grievance is an important feature of the Acas Code and also the employer's own procedure. It is a significant employment right and it was "not easy to see" why an organisation of Aldi's size was unable to provide an impartial hearing by a manager not previously involved.
•    Failure to adhere to a grievance procedure is capable of amounting to or contributing to a breach of the implied term of trust and confidence. Whether it does so in a particular case is a matter for the tribunal to assess. Breaches of grievance procedures "come in all shapes and sizes". For example, failure to comply with a short timetable will not necessarily contribute to or amount to a breach of the term of trust and confidence. However a wholesale failure to respond to a grievance may amount to or contribute to a breach of the implied term.
•    Where an allegation is made that there has been a breach of the implied term of trust and confidence, the tribunal's task is to assess what occurred against the Malik test. The tribunal in this case should have made findings of fact about the appeal hearing and assessed whether there was a breach of the implied term, based on those findings. It made no findings as to whether what occurred amounted or contributed to a breach of the implied term; this was an important part of Mr Blackburn's case.

Comment

The Acas Code recognises that an employee should be entitled to an impartial appeal of a grievance decision heard by an independent person who was not involved in the original decision. This accords with principles of natural justice and is also good practice for the person hearing the appeal to be outside the reporting line of the person who conducted the disciplinary hearing. This will help avoid allegations that the manager responsible for the appeal was biased, or simply supported their subordinate's decision as a matter of course, rather than considering the matter afresh or properly reviewing the decision.
The employment appeal tribunal's decision confirms that an employer's failure to allow an employee the right to appeal a grievance decision to an independent person who was not involved in the original decision may amount to a breach of the implied term of trust and confidence. Whether it does in fact will depend on the facts, including the size of the employer and its ability to provide an independent senior manager. Such a breach may entitle an employee to resign and claim constructive dismissal without having to rely on breach of an express contractual term.

The issue of impartiality in internal appeals in the context of a grievance procedure was also considered by the employment appeal tribunal in Watson v University Of Strathclyde UKEAT 0021/10 (where the employee objected to the apparent bias of a member of the appeal panel and resigned, claiming constructive dismissal, when her objection was dismissed). For further details, see Practice note, Conducting a disciplinary investigation and hearing: Conduct of appeal: impartiality
 
Case
Blackburn v Aldi Stores Ltd UKEAT 0185/12, 29 July 2013.