In Little v Richmond Pharmacology, Ms Little, a sales executive for Richmond, made a flexible working application whilst she was on maternity leave, to return to work on a part-time basis once her maternity leave came to an end. That application was turned down by her manager on the basis that it was not possible for sales executives to work part time. In the letter confirming that decision, Ms Little’s manager stated that it was subject to appeal. Ms Little submitted her appeal and before a date for the appeal hearing was set, Ms Little resigned. Despite her resignation, Ms Little subsequently attended the appeal hearing, the result of which was that her appeal was upheld and she was allowed a part-time working arrangement on a trial basis. However, Ms Little refused to accept the offer and confirmed her resignation. Ms Little brought a claim for indirect sex discrimination. The Employment Appeal Tribunal (EAT) confirmed the Tribunal’s decision that the claim was unsuccessful because Ms Little had not suffered a disadvantage or detriment because on appeal, her part-time working request had been granted. It was important that the initial decision of the manager to turn down the flexible working request was “conditional” upon an internal appeal, which effectively meant that once that appeal was successful, the original decision refusing the part-time working request was void. The decision was also driven by the fact that the original decision and appeal both happened while Ms Little was still on maternity leave, so she did not suffer any disadvantage or detriment because she did not have to work full-time whilst her appeal was pending.
In Blackburn v Aldi Stores, Mr Blackburn raised a grievance raising issues about health and safety, lack of training and his treatment by the deputy transport manager, who Mr Blackburn alleged had sworn at him on more than one occasion. His grievance was heard and partially upheld by the regional managing director, H, but H accepted the manager’s denial that he had sworn at Mr Blackburn. Mr Blackburn appealed. The company’s written grievance procedure provided that an employee who wished to appeal must do so to the next level of management, but H heard the appeal himself (and rejected it). A few days later, Mr Blackburn resigned, and subsequently he brought an unfair constructive dismissal claim, alleging that the implied term of mutual trust and confidence was breached by effectively denying him an appeal. Overturning the Tribunal’s decision that there was no constructive dismissal, the EAT held that a failure to adhere to a grievance procedure is capable of amounting to or contributing to a breach of the implied term of trust and confidence, but such failures take different forms; a failure to stick to a short timetable may not contribute to a breach of the implied term, whereas a wholesale failure to respond to a grievance may amount to, or contribute to, such a breach. In this case, the EAT found that the right to appeal was an important aspect of Aldi’s own grievance procedure, and an organisation the size of Aldi should have been able to provide for an impartial appeal hearing by a manager who had not previously been involved. The EAT sent the case back to the Tribunal to consider the question again.
What the above cases show is that:
- It is important to make decisions on employee issues such as grievances, disciplinary matters and flexible working requests subject to the right to appeal, as this can enable employers to have a second chance to consider the issue, and if the original decision was flawed, to overturn it.
- Even if a grievance procedure is not expressed to be contractual, if a failure to follow it is sufficiently serious, this may lead to a breach of the implied term of trust and confidence, which could justify an employee walking out and claiming constructive dismissal.