A recent EAT case is useful reminder of the interplay between grievances and a case for constructive dismissal. Long gone are the days where one has to raise a grievance before one can bring an employment tribunal claim but employees are still well advised to do so. This is for a number of reasons.
Firstly of course, the action they are complaining about may be resolved by the employer and there is no need for the employee to resign. This normally occurs where the action had unexpected consequences or there was some misunderstanding initially. in my experience, many employers merely confirm their actions as part of the grievance process unless this was the case. Secondly, the employer can understand the level of your frustration/anger and they may not have genuinely realised the way you felt about it. Lastly, an employee’s award can be adjusted by the Employment Tribunal if they fail to follow the grievance process.
The case of Blackburn v Aldi Stores Ltd UKEAT/0185/12 reminds employers also that failure to adhere to a grievance procedure is capable of contributing to (or even amounting to) a breach of the implied term of trust and confidence. Thus entitling the employee to rely on the breach as grounds for resignation and claim constructive dismissal. As to whether it does in any particular case is for the Tribunal to decide on the facts depending on the breaches.
It is of course well established that failure to deal with a grievance full stop can be a breach of the implied term of trust and confidence. In this case, it was the appeal that was flawed as the appeal was heard by the same manager (not withstanding the size of the employer Aldi) that heard the original grievance and the meeting only lasted 20 minutes. The EAT remitted the case back to the ET to decide whether in this case the failure amounted to a breach of the implied term by making findings of fact based on the appeal hearing. The case also concerned a failure by the ET to permit the claim to be amended but this is more fact sensitive.