The case in question concerned an employee who had raised a grievance concerning various issues, including alleged health and safety breaches and also mistreatment by a manager. The employee’s complaints were investigated by one of the employer’s managers but were only upheld in part. The employee subsequently exercised his right of appeal against that decision.
The employer’s procedures provided that appeals should be heard by an impartial manager who was more senior than the original decision maker and who had not previously been involved. For whatever reason, that policy was not adhered to and the employee’s appeal was heard (and quickly dismissed) by the same manager who had arrived at the original grievance decision.
Following the dismissal of his appeal, the employee resigned and issued a claim for constructive unfair dismissal. Part of the employee’s claim involved an allegation on his part that the employer’s failure to ensure an impartial appeal constituted a repudiatory breach of the implied term of trust and confidence.
The employee’s breach of trust and confidence argument failed at the initial Employment Tribunal hearing; with the Tribunal holding that the employer’s failure to afford the employee an impartial appeal was irrelevant to the employee’s allegation that the employer’s actions constituted a breach of the implied term of mutual trust and confidence. The employee appealed to the Employment Appeal Tribunal (EAT).
Finding in the employee’s favour, the EAT remitted the matter back to the original Tribunal with instructions that, amongst other things, it must make findings of fact about the appeal hearing and then go on to determine whether or not there had been a breach of the implied term of trust and confidence.
In arriving at its decision, the EAT noted that the right to an impartial appeal is an important feature of the ACAS Code and, in the present case, also of the employer’s own grievance procedure. The EAT also reminded the Tribunal of the House of Lords assertion in the key case of Malik v Bank of Credit & Commerce International SA (in compulsory liquidation) that:
“The employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.”
The EAT’s decision makes it clear that the failure to ensure impartiality in terms of internal grievance and disciplinary proceedings may (depending on the particular facts of each case) constitute or contribute to a breach of the implied term of trust and confidence.
Employers are advised to minimise their exposure to these types of claims by adhering to the relevant ACAS guidance and also ensuring compliance with their own internal procedures (which may be contractually binding in any event).
Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.