F Amedzo v Bidvest Noonan (UK) Limited

A deficient grievance process may support a constructive-dismissal claim, but only where the employer’s conduct amounts to a repudiatory breach, including of the implied term of trust and confidence. A breach of the ACAS Code is not determinative of that contractual question.

On an appeal limited to law, factual findings that the grievance process was unbiased, procedurally proper, and handled by appropriate managers cannot be reopened merely because the employee disputes them. An alleged procedural defect which caused no prejudice and had no causal effect on the resignation cannot establish constructive dismissal.

The claimant, a security officer, resigned after his employer rejected his grievance and grievance appeal concerning an earlier absence investigation and alleged misconduct by a manager. He brought a claim of unfair constructive dismissal.

The Employment Tribunal rejected the claim. It found no procedural irregularity, bias, or breach of the implied term of trust and confidence in the handling of the grievance. The claimant appealed, contending that the grievance procedure had been ineffective, that an absence meeting had been chaired by a person who was not a manager, and that the appeal manager was junior to the original grievance manager.

The central issue was whether those complaints disclosed an error of law in the Tribunal’s conclusion that there had been no repudiatory contractual breach.

1. Appeal dismissed. The Employment Tribunal’s conclusion that the employer had not breached the implied term of trust and confidence was a factual conclusion open to it and disclosed no error of law.

2. The EAT accepted the general proposition in Bracebridge Engineering Ltd v Darby [1990] IRLR 3 EAT that a failure seriously to consider a genuine grievance, or an ineffective grievance procedure, could found constructive dismissal. That proposition is conditional. Not every defect in a grievance procedure entitles an employee to resign and claim constructive dismissal.

3. The Tribunal had considered the complaints about the grievance process in detail and found neither procedural irregularity nor bias. The claimant’s additional complaints that the grievance managers had not spoken to the relevant manager were either outside the permitted grounds of appeal or contradicted by an unchallengeable factual finding.

4. The finding that the manager who convened the initial absence meeting was a manager for the purposes of the employer’s policy was a finding of fact and was not perverse. In any event, the claimant suffered no relevant prejudice: he declined that meeting and another manager met him the next day. The alleged defect neither caused his resignation nor was material to constructive dismissal.

5. The Tribunal had also found that the grievance manager and appeal manager were at the same management level and were appropriate to perform their respective roles. The appeal manager’s more recent appointment was irrelevant. The ACAS Code required impartiality and lack of previous involvement, not superior seniority; and any breach of the Code would not itself determine whether the implied contractual term had been breached.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal’s rejection of the constructive unfair-dismissal claim was upheld.

• Employment Tribunal, London Central: judgment and reasons issued on 16 December 2022. The claim of constructive unfair dismissal was dismissed after findings of no procedural irregularity, bias, or breach of trust and confidence.