The Employment Appeal Tribunal (EAT) has decided that an employer’s failure to provide an impartial grievance appeal process could amount to a breach of any implied term of trust and confidence between employer and employee and thus form the basis of a constructive dismissal claim.
The Employment Appeal Tribunal (EAT) has decided that an employer’s failure to provide an impartial grievance appeal process by allowing an employee to appeal to a different manager than the one who heard the original grievance could amount to a breach of any implied term of trust and confidence between employer and employee and thus form the basis of a constructive dismissal claim.
This case should serve as a reminder of the importance of having a comprehensive grievance procedure which complies with the ACAS Code of Conduct on Disciplinary and Grievance Procedures. Not only can dealing with a grievance effectively avert tribunal claims by enabling the issue to be resolved internally, it can also affect the level of compensation awarded by a Tribunal. If an employee's claim is successful the level of compensation awarded by the tribunal may be increased by up to 25% for the employer’s failure to follow the Code and decreased by up to 25% for the employee’s failure to follow the Code.
How should a grievance be dealt with?
Raised in writing
If a grievance cannot be resolved informally the employee should raise it in writing with a manager or if the grievance concerns their line manager it should be raised with another manager.
Investigation and meeting
A meeting should be held to allow the employee to explain their grievance and how they think it should be resolved. If the matter needs further investigation the employer should consider adjourning the meeting and resuming it after the investigation has taken place. Once a decision has been reached the employer should communicate this to the employee in writing and without delay.
Take a companion
The employee is entitled in law to take a companion to the grievance meeting with them. The companion can be a fellow worker or a trade union representative.
The right to appeal
The employer should inform the employee that they have a right of appeal when they communicate the decision. Therefore if the employee is not satisfied with the outcome they should appeal in writing specifying the grounds of their appeal.
The appeal should be dealt with impartially at a hearing which should (if possible) be conducted by a manager who has not been previously involved. The employee should be informed in advance of the time and place of the appeal hearing and again is entitled to bring a companion. The employer should communicate the final decision in writing without unreasonable delay.
It is clear that having an effective grievance procedure can save time and resources in the long run as it can often prevent disputes from escalating.
For further information please contact David Hacker