October 23, 2013

Breach of grievance procedure may be breach of trust and confidence

The Claimant lodged a complaint about the deputy transport manager, which was dealt with by the regional managing director. The grievance was partially upheld and the Claimant appealed against the aspect of his grievance which has not been upheld. He addressed the appeal to the regional director who had heard the grievance, copying in the group managing director.

Although the Respondent’s grievance procedure provided for appeals to be deal with by the next level of management, the same regional director dealt with the appeal in a hearing lasting 20 minutes, which he rejected The Claimant resigned shortly thereafter relying on the breach of the implied term of trust and confidence, that he was effectively denied an appeal because the appeal was heard by the same individual who heard the grievance.

Interestingly the Claimant attempted to amend him claim when he appreciated that the grievance procedure had been breached and there was breach of an express contractual term for failure to follow the process. The Tribunal refused and went on to hold that there was no constructive dismissal because it held that the grievance had been given proper consideration at the initial stage. It held that the employer’s duty in relation to the implied term of trust and confidence was to allow the employee to bring a complaint, have it heard, and give it reasonable consideration; all of which the Tribunal found had happened. Since it found there was no breach of an express contractual term, it held that the Respondent’s failure to allow a different individual to hear the appeal was not a breach of contract sufficient to allow the Claimant to claim constructive unfair dismissal.

This was overturned on appeal to the EAT. The EAT considered that a failure to adhere to a grievance procedure may amount, or contribute, to a breech of the implied term of trust and confidence, following Malik and other v Bank of Credit and Commerce International SA. The EAT also said that a failure to comply with a grievance procedure may take a number of different forms, from failing to adhere to a specified time table, to completely failing to deal with the complaint at all.

The EAT also consider that the Tribunal’s refusal to allow the Claimant to amend him claim was flawed and the case has been remitted to the same Tribunal to reconsider.

This legal update is provided for general information purposes only and should not be applied to specific circumstances without prior consultation with us.

For further details on any of the issues covered in this update please contact Gemma Ospedale, Partner in Employment on 020 7583 2222.

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