Failure to progress a formal grievance – should I stay, or should I go?

Alexander Jones recently achieved a significant victory in a multi-day employment tribunal on the issue of grievances and a Respondent’s handling of the same.

The Claimant, a long-standing employee, was aggrieved about various issues including the actions of a manager and indicated his intention to resign. Initially the Claimant agreed to progress his concerns informally; however, as time went on, and in the Claimant’s view no sufficient progress was made, the Claimant sought to invoke the Respondent’s grievance policy which dictated that “You still always have a right to raise a formal complaint at any time during or after the informal stage”.

The Respondent, in a bid to encourage mutual conciliation, encouraged the Claimant to continue with the informal process. For a brief period, the Claimant did so, however repeatedly invoked his right for the matter to be escalated to a formal grievance process. At the date of the Claimant’s resignation the Respondent had not done so despite repeated requests and reference policy (as above).

The question for the Tribunal was, amongst others, whether the Respondent’s failure to escalate the Claimant’s grievance from informal to formal was a breach of contract or a breach of the well-known Malik term of ‘trust and confidence’, thus entitling the Claimant to resign, and consider himself dismissed under Section 95(1)(c) of the Employment Rights Act 1996.

The Tribunal, in a detailed judgment, concluded not. The Tribunal held that:

• The Tribunal was satisfied that the Claimant was seeking to bring a formal grievance, which he was entitled to do under the Respondent’s policy, and for the Respondent not to permit this was a breach of its own policy [para 82]
• The Tribunal found that the Respondent continued to refuse, disregard, ignore or obstruct the Grievance Policy and procedure(s) over a period of time up until the Claimant’s resignation.
• However, the grievance policy was not contractual. A fact which the Claimant accepted in cross-examination [para 81]
• The question was therefore whether a breach of the Respondent’s own policy was sufficient to be a fundamental breach of the contract between the Claimant and the Respondent (i.e a breach of the Malik term) [para 88]
• The Tribunal considered the relevant authorities such as Blackburn v Aldi Stores Limited [2013] IRLR 846; W A Goold (Pearmak) Ltd v McConnell [1995] IRL.R 516; Ministry of Defence v Guellard [2009] All ER (D) 50 (Dec) ; Woods v WM Car Services (Peterborough) Ltd [1981] IRLR 347, [1981] ICR 666) and Claridge v Daler Rowney [2008] IRLR 672.
• The Tribunal concluded that even if the Respondent could and should have progressed to a formal grievance process sooner, that of itself was not sufficient for a fundamental breach of the implied term of mutual trust and confidence [para 93]
• The correct test to be applied was not whether the Claimant had subjectively lost confidence in the employer but whether objectively the employer’s conduct was repudiatory (see Woods). It was not sufficient that an employer acts unfairly or unreasonably [para 93].
• The Tribunal found that the Respondent’s actions, or more appropriately described as inactions, were not so egregious that no reasonable employer could have acted in that way [para 93]. In making that finding the Tribunal noted that a comprehensive, informal, investigation was carried out by the Respondent which involved significant preparation and was developed and expanded upon at the Claimant’s request [para 68].
• Looking at the situation objectively, the Tribunal found that the Respondent was trying to resolve the issues and get the Claimant back to work. Applying Blackburn, the Respondent was not objectively abandoning nor refusing to perform the contract.

The complaint of constructive dismissal therefore failed.

The Tribunal however went on to consider the Claimant’s reasons for resigning (see Wright v North Ayrshire Council [2014] ICR 77 and United First Partners Research v Carreras [2018] EWCA Civ 323). It is worth remembering that where an employee has mixed reasons for resigning, the resignation would constitute constructive dismissal if the repudiatory breach relied on was at least a substantial part of those reasons.

This Claimant maintained that he resigned due to the Respondent’s refusal to escalate his complaints, however following cross examination the Tribunal agreed that the Claimant resigned because of the underlying subject matter of the grievance (conduct of a fellow employee) and not because of any failure to allow a grievance into that conduct. The Tribunal agreed that it would be an error of law for the Tribunal to conclude that the Claimant’s resignation due to underlying subject matter of the grievance was equivalent to his resignation because of a failure to progress the grievance [para 106].

The takeaway point seems to be that a Claimant’s non-contractual right to raise a formal grievance, which is not acted upon, does not automatically give rise to a fundamental breach of the contract in the Malik sense. The Tribunal will consider, objectively, what steps were taken by the Respondent before concluding that a Respondent was to be taken to be abandoning or refusing to perform the contract.

Whilst employers should always strive to comply with their own policies, a failure to do so is not the end of the story….

The Judgement is a worthy read of any practitioner dealing with grievances in the context of alleged breaches of the Malik term. The Tribunals comprehensive Judgment can be found here.

Alex acted for the Respondent in this case. Alex undertakes employment work for both Claimant and Respondent and is willing to accept cases on a Conditional Fee Agreement where the merits allow.

‍