Employment Law Solicitor Chris Hadrill on grievance procedures and constructive dismissal claims in the Employment Tribunal

In this article we’re going to take a look at two recent cases in the Employment Appeal Tribunal, Blackburn v Aldi Stores Ltd UKEAT/0185/12/JOJ and Leeds Dental Team Ltd v Rose UKEAT/0016/13/DM – cases concerning employers’ handling of grievance procedures and when unreasonable behaviour on the part of an employer in doing so can result in successful claims in the Employment Tribunal for constructive unfair dismissal. We’ll therefore examine the following:

1. What processes should an employer generally follow in dealing with grievances?
2. What failures in a grievance process can lead to a claim for constructive unfair dismissal?
3. The case of Blackburn v Aldi Stores Ltd – contractual grievance procedures and implied terms
4. The case of Leeds Dental Team Ltd v Rose – companions at a grievance hearing

What processes should an employer generally follow in dealing with grievances?

First off, employers have an obligation to deal promptly and properly with grievance procedures. This means registering the fact that a grievance has been filed, investigating the grievance within a reasonable period of time, keeping the employee updated on the progress of the grievance procedure, coming to a fair and reasonable outcome and informing the employee within a reasonable period of time of what the outcome to the grievance process is.

Further, an employer should allow an employee a right of appeal to their grievance outcome.

What failures in a grievance process can lead to a claim for constructive unfair dismissal?

The overriding principle of grievance processes is that the process is dealt with reasonably by the employer – for example, that the employer should deal with the grievance within a reasonable period of time and that they should produce a reasonable outcome. The following failures can potentially mean that a grievance process hasn’t been handled reasonably:

1. A failure to deal with the grievance at all
2. A failure to investigate the grievance properly and promptly. For example, a failure to take witness statements from relevant persons could constitute a failure to deal with a grievance process properly
3. A failure to hold a grievance hearing within a reasonable period of time
4. A failure to have the grievance hearing held by an appropriately impartial and senior member of staff (or consultant)
5. A failure to come to a reasonable outcome in the grievance process
6. A failure to allow the employee to appeal against their grievance outcome

The case of Blackburn v Aldi Stores Ltd – contractual grievance procedures and implied terms

The recent Employment Appeal Tribunal (“EAT”) case of Blackburn v Aldi Stores Ltd demonstrated they key point that a failure to follow a contractual grievance procedure can constitute a breach of the implied term of mutual trust and confidence in the contract of employment, entitling the employee to potentially resign and claim constructive dismissal in the Employment Tribunal. Further – and by extension, although the EAT wasn’t primarily concerned with this in the judgment – a failure to follow a contractual grievance procedure can also clearly demonstrate a fundamental breach of an express term of the contract of employment.

The case of Leeds Dental Team Ltd v Rose – companions at a grievance hearing

The recent EAT case of Leeds Dental Team Ltd v Rose demonstrated the key point that a failure to allow an employee’s reasonable request to be accompanied at a disciplinary hearing by a companion of her choice can constitute a breach of the implied term of mutual trust and confidence.