Blackburn v Aldi Stores Ltd

A grievance appeal may be a significant feature of the implied term of trust and confidence. Failure to follow a grievance procedure, including failure to provide an impartial appeal, may amount to or contribute to a repudiatory breach, assessed by reference to the Malik test. An Employment Tribunal must determine the facts concerning the alleged failure and assess its contractual significance.

An amendment application must be determined by balancing all relevant prejudice and hardship. Lateness is not necessarily prejudice; its effect depends on the respondent’s ability to meet the amended case and the circumstances of the application.

The claimant appealed against the dismissal of his constructive unfair dismissal claim and against refusal of permission to amend his claim. He alleged that the employer had mishandled his grievance and had denied him an effective appeal. The appeal meeting was conducted by the same manager who had decided the grievance.

The Tribunal considered the initial grievance process but made no findings about what occurred at the appeal meeting. It also refused an amendment alleging that the grievance procedure had contractual effect. The central issues were whether the alleged denial of an effective appeal was relevant to the implied term of trust and confidence, and whether the amendment had been properly refused.

1. Appeal allowed. The Employment Tribunal had erred in law by treating the events of 21 July as irrelevant to the constructive dismissal claim merely because breach of an express contractual term had not been pleaded.
2. The grievance procedure was to be given its ordinary meaning in the employment context. In light of the ACAS Code, which contemplated an impartial appeal wherever possible before a manager not previously involved, the provision for appeal to the next level of management envisaged an impartial appeal by an uninvolved manager.
3. Failure to adhere to a grievance procedure is capable of amounting to, or contributing to, breach of the implied term of trust and confidence. The question is fact-sensitive and must be assessed under the Malik test. Minor procedural failures will not necessarily suffice, whereas a wholesale failure to respond may do so.
4. The Tribunal failed to make findings about the appeal meeting, including whether the claimant had been denied any real appeal, and failed to assess whether the events amounted to or contributed to breach of the implied term. Its suggestion that the issue could only support a claim for breach of an express term was erroneous.
5. The refusal of amendment was also flawed. Although the proposed amendment was not merely a relabelling of the existing case, it was close to one because much of the factual basis was already pleaded. The Tribunal did not properly assess the alleged prejudice. Lateness alone was insufficient, and the claimant’s prejudice depended on whether the appeal allegations would otherwise be considered.
6. The Employment Appeal Tribunal could not substitute its own decision because the facts of the appeal meeting remained unresolved and neither breach nor permission to amend was inevitable. The matter was remitted, preferably to the same Tribunal if it could be reconstituted, for a fresh decision on amendment, incorporation of the grievance procedure, and the effect of the events on 21 July.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s refusal of amendment and dismissal of the constructive unfair dismissal claim. The matter was remitted for reconsideration.
• Employment Tribunal: refused permission to amend and dismissed the claim.