In Blackburn v Aldi Stores Ltd the Employment Appeal Tribunal looked at whether a failure to provide an adequate appeal in a grievance procedure could amount to a breach of mutual trust and confidence and thus a constructive dismissal, and concluded that it could.
Mr David Blackburn commenced work with Aldi in 2006 as a light goods vehicle driver. He is a retired police officer and his background was as a vehicle examiner and health and safety trainer. Throughout his employment at Aldi he had concerns about health, safety and training at the depot where he was based. He raised his concerns in particular with Mr Gallivan, the deputy transport manager. It was accepted in evidence that on one occasion Mr Gallivan waved him away, swore at him, said the training was “shit” and told him to “fuck off home”. In fact the depot came out well in audits of vehicle inspection and health and safety.
However there was another flare up with Mr Gallivan in June 2009 and this led to Mr Blackburn raising grievances concerning both Mr Gallivan and a section manager, going back over some time. Normally, under the company’s written procedure, the section manager would have been the person to consider the grievance, but as it concerned him, the next person for it to go to was the logistics manager. But there was no logistics manager – so the regional managing director, Mr Heatherington, dealt with the grievance instead. He met twice with Mr Blackburn, notes were taken and the meetings were recorded. He also spoke with potential witnesses. He reported his findings in detail and upheld the grievance in part. Mr Blackburn was not satisfied and appealed, copying his notice of appeal to the managing director. Remarkably, Mr Heatherington dealt with the appeal himself, holding a brief appeal meeting.
What happened at that meeting was disputed, with Mr Blackburn saying that he was barely permitted to speak and was given a dressing down. Mr Heatherington put forward a rather different version. Mr Blackburn maintains that he was told by Mr Heatherington that his decision was final and he had to accept it. He also alleged that Mr Heatherington had told him that he was anwerable to no-one and that he was in overall charge.
Six days later, Mr Blackburn resigned and started constructive dismissal proceedings. Having started the claim on the basis of a breach of mutual trust and confidence, permission was sought to add an allegation that the grievance procedure had been contractual and there had been a breach of an express term – but this was refused.
The Tribunal considering the claim made no findings as to what had happened at the grievance appeal hearing. In rejecting the constructive dismissal claim it concentrated on the matters complained of in the grievance. It mentioned in passing that a failure to allow an appeal to someone other than Mr Heatherington might have been a breach of an express term, but declined to address the point, as that was not how the case had been framed. Discussing the importance of appeal processes, the Employment Appeal Tribunal commented that:
The right to an appeal in respect of a grievance is important both as a feature of the Respondent’s own grievance procedure and of the ACAS Code of Practice. It is a significant right in the employment context. It is not easy to see why an organisation the size of the Respondent should have been unable to make provision for an impartial hearing by a manager not previously involved.
It was noted that the ACAS Code of Practice provides (and one would have thought that every employer should know) that an appeal “should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case”. On these facts it was straightforward to conclude that the employer had “without reasonablee and proper cause conduct[ed] iteself in a manner calculated and likely to destroy or seriously damage te relationship of trust and confidence between employer and employee” (Malik v BCCI) so that Mr Blackburn could properly regard himself as constructively dismissed as a result of the employer’s actions.
Perhaps surprisingly the case was remitted to the same tribunal for further consideration taking into account the appeal findings.