Andrew McConnell, an associate at Brodies, looks at the potential consequences of mishandling an employee’s grievance and provides some tips for employers on avoiding a claim for constructive dismissal.
Grievances: common problems
When a worker’s contract of employment is breached by his or her employer – and the breach is sufficiently serious – that worker can resign, claiming constructive unfair dismissal. Not all terms of an employment contract are found in the written contract itself. In particular, employers must act in a manner that does not breach the implied duty of mutual trust and confidence between them and their employees. An employer can fall foul of this duty in a number of different ways, including the situation where it fails to deal with an employee’s grievance properly.
An employee handbook will often set out the procedure to be followed where an employee wishes to raise a grievance. Employers are required by law to provide their employees with “a method of dealing with grievances in a timeous and proper fashion”.
It is not enough for an employer simply to have a written grievance procedure in place. The procedure itself must also be followed properly and fairly, and should take into account the guidance set out in the Acas code of practice on disciplinary and grievance procedures. Where an employer fails to follow its own grievance procedure, the courts have held that this may be sufficiently serious so as to damage the relationship of mutual trust and confidence between employer and employee – allowing the employee to bring a claim of constructive unfair dismissal against the employer.
Blackburn v Aldi Stores Ltd
A recent decision of the Employment Appeal Tribunal (EAT) provides an example of how things can go wrong. Blackburn v Aldi Stores Ltd concerned an employee who worked as a driver at a depot operated by his employer. The employee was dissatisfied with training and health and safety procedures at the depot, and also with his treatment by his manager. The employee raised a grievance, which was dealt with by the employer’s regional managing director.
The regional managing director produced a report that upheld some parts of the grievance, but not others. The employee appealed. He was invited to attend a meeting with the same regional managing director who dismissed his appeal within 20 minutes. The employee resigned, claiming constructive unfair dismissal. The EAT found that a failure to provide an impartial appeal was capable of amounting to a breach of the duty of mutual trust and confidence. Potentially, therefore, the dismissal was unfair.
Tips for the safe handling of employee grievances
Employers must be extremely careful in the way that they handle grievances. If problems arise, the procedure that the employer adopted may be subject to close scrutiny by the employment tribunal. While each case will turn on its own facts, here is our list of tips for the safe handling of employee grievances:
- Follow the Acas code of practice on disciplinary and grievance procedures. This code provides helpful guidance for handling grievances. Failure to comply with the Acas code will not automatically result in an employee being successful in an employment tribunal claim. However, if the employee is successful in their claim and the employer failed to follow the code, it can result in an increase of up to 25% in any award made – so ensure your grievance procedure follows the code.
- Follow your policy. An employer cannot simply rely on the presence of a policy to defend a claim. Employers must be able to demonstrate that the policy was followed and that if there were any breaches, these were not sufficiently serious to damage the obligation of mutual trust and confidence.
- Deal with appeals as impartially as possible. Where possible, appeals should be dealt with by: someone not previously involved in the case; and someone who is more senior than the person responsible for making the original decision. It is also good practice for the person hearing the appeal to be outside the reporting line of the person who conducted the original hearing. This will help avoid allegations that the manager responsible for the appeal simply supported their subordinate’s decision as a matter of course, rather than properly reviewing the decision. Employment tribunals have little sympathy for large employers that are unable to follow this best practice.