Breach of an express contract term can result in a finding of constructive dismissal, but what about an implied term? In Blackburn v Aldi Stores Ltd, the Employment Appeal Tribunal (EAT) held that failure to adhere to a grievance procedure can amount to a breach of the implied term of trust and confidence.
Mr Blackburn, an LGV driver, lodged a grievance against the deputy transport manager, alleging that he had sworn at him after he raised issues about health and safety, as well as the transport manager whom Mr Blackburn claimed disliked him because he had raised issues about training.
The grievance was heard by the managing director for the region, Mr Heatherington, who accepted some of his complaints, but rejected the allegation that the deputy transport manager had sworn at him. Mr Blackburn then lodged an appeal which was heard by Mr Heatherington, contrary to the firm’s written grievance procedure.
Mr Blackburn resigned a few days later, claiming unfair constructive dismissal on the basis that the company had breached the implied term of trust and confidence by denying him the right to a proper appeal as Mr Heatherington had heard both the original grievance and his appeal. He subsequently tried to amend his claim at the tribunal hearing that the grievance procedure was an express term of his contract.
The tribunal refused to allow the amendment because Mr Blackburn did not explain why he had not included this claim earlier.
It also held that he had not been constructively dismissed, because there had been no breach of the grievance procedure. However, in reaching that decision the tribunal considered that Mr Blackburn’s complaint was that he did not get an opportunity to appeal and while that “might have been a ground on which to bring a claim for breach of an express term, … that was not the case before the Tribunal."
As this was a grievance in relation to the implied term of trust and confidence, the company did not have to go through any set procedure. Instead, it just had to allow Mr Blackburn to bring the complaint, hear it and give a “reasonable outcome”, all of which it had done.
The EAT upheld Mr Blackburn’s appeal. Taking into account the ACAS Code of Practice - which specifically provides for an appeal to be dealt with impartially by a manager not previously involved in the case - the EAT held that the failure to adhere to a grievance procedure could amount to a breach of the implied term of trust and confidence if, in the words of the House of Lords in Malik v BCCI, the employer had unreasonably conducted themselves in such a way that was “likely to destroy or seriously damage the relationship of trust and confidence between employer and employee."
It was up to the tribunal to assess whether there had been a breach of the Malik test, by giving careful consideration to the particular circumstances of every case. It should therefore have considered what had happened at Mr Blackburn’s appeal and whether it amounted to a breach of the grievance procedure and/or a breach of the implied term of trust and confidence.
In addition, the EAT held that, when assessing the potential prejudice to both parties of allowing the amendment, the tribunal should have followed the principle laid down in Selkent Bus Co Ltd v Moore which required it to “take into account all the circumstances and ... balance the injustice and hardship of allowing the amendment against the injustice and hardship of refusing it."
It therefore remitted the issue to the same tribunal to hear submissions and reconsider its decision about what had happened at the appeal hearing.
The case is a timely reminder that employers must ensure that when applying their own grievance procedures they must comply with the ACAS Code of Practice. Although not every breach of the grievance procedure will amount to a breach of contract a failure to provide an impartial appeal in a big company such as in this case, could amount to a breach.