Employers must provide an impartial appeals manager in the grievance process
An employer’s failure to provide a proper, impartial grievance process has been held to breach the implied term of trust and confidence between employer and employee.
An employer’s failure to provide a proper, impartial grievance process has been held to breach the implied term of trust and confidence between employer and employee.
The term of “mutual trust and confidence” is an implied term of all employment contracts. The term is most commonly relied upon by employees pursuing a claim for constructive dismissal – arguing that their employer’s conduct has seriously damaged the relationship of trust between them, rendering it impossible for them to remain in employment.
In the recent case of Blackburn v Aldi Stores Ltd (UKEAT 0185/12), the Claimant, Mr Blackburn, was a lorry driver for Aldi Stores. He submitted a grievance to the company; raising issues of health and safety, lack of training and mistreatment by a deputy manager.
The grievance was handled by the regional managing director, who upheld much of Mr Blackburn’s grievance save for the allegations against the deputy manager. Mr Blackburn appealed, submitting his reasons to the regional managing director and copying in the next level of management also.
The regional managing director (who had heard the initial grievance and was not therefore impartial) invited Mr Blackburn to an appeal hearing and dismissed the appeal after a hearing which lasted but 20 minutes.
Subsequently, Mr Blackburn resigned and brought a claim for constructive unfair dismissal.
The Employment Appeals Tribunal (EAT) held that the right to an impartial appeal in respect of a grievance is a key feature of the Acas Code. Denying Mr Blackburn that important right amounted to a breach of the implied term of trust and confidence.
This decision reminds employers of the importance of having an impartial member of staff hearing appeals in order to ensure a fair process for the employee (disciplinary, capability etc.), who has not previously been involved at an earlier stage. This rule applies not just to grievance matters, but to all forms of appeal heard by employers.
Whilst the right is clearly set out in the Acas Code, employer policies should also reflect this, so that managers dealing with issues are aware of the need for an impartial appeals manager.
Where an employer is small in size, it may be more difficult to find a member of staff who has not previously been involved in an issue; particularly if the matter has involved many witnesses and a wide-ranging investigation. Delivering its decision in Blackburn, the EAT stated that it would take into consideration the “size of the employer and its ability to provide an independent senior manager”. Having said that, employers should be urged wherever possible to seek out an independent appeals manager for contentious cases and consider the use of an external consultant if necessary.