Martin Cheyne, employment expert at Hempsons, discusses a recent case where strict adherence to grievance procedures resulted in a constructive dismissal, and he examines the future implications of this.

The grievance procedure is designed to resolve grievances at work. Occasionally, however, that procedure can itself become a part of, or the focus of, the grievance. A recent case has highlighted the issue.

In GMB v Ms Brown, Ms Brown was a union employee who originally raised a grievance about her line manager’s proposals to alter her job content and work role.

The union’s grievance procedure provided for three stages of grievance hearing. The first was for the grievance to be raised with the line manager (TB) and the second stage with the regional secretary. Her line manager was also the regional secretary.

The third stage grievance involved a joint panel consisting of two management representatives and two representatives of the Officer Negotiating Council.

Several meetings were held between Ms Brown and TB, to discuss his proposals for change to her role, but their positions became entrenched. By this time, she was absent from work with occupational stress.

Inappropriate progress

TB proposed further meetings, but these were all rejected by Ms Brown. TB regarded the progress of the grievance hearing as inappropriate, whilst a decision had yet to be taken regarding the proposed changes to her duties. However, the tribunal later noted that it was clear that Ms Brown’s health was suffering.

Ms Brown then revised her grievance about the proposals to change her role, adding new issues relating to the line manager himself. She considered that the first stages of the grievance were exhausted and requested that her grievance was dealt with at stage three. She had been told that this is what had happened on a previous occasion.

These new issues were, however, never addressed by TB as a grievance, under the GMB’s procedure, because Ms Brown had refused to attend further meetings with him. She wanted to bypass him and have the matter dealt with as a final stage grievance because her grievances related to him.

TB rejected this suggestion, requesting that she follow the grievance procedure by first attending a meeting with him. There was evidence of Ms Brown’s ill health, and of the likely adverse effect of TB’s insistence upon holding the first stages of the grievance procedure.

The matter continued over many months. During this time, Ms Brown went on maternity leave and she was requested to return her mobile phone and laptop. Subsequently she was allowed to retain the phone but the laptop was returned.

At the end of her maternity leave she was not well enough to return to work and she continued to submit sicknotes. By this time, the GMB had introduced its ‘Dignity at Work’ procedure, specifically to deal with bullying and harassment by senior officers, including regional secretaries. This had two stages. The first, optimistically, requires a complaint to be raised with the senior manager concerned. The second involves an independent ACAS appointed arbitrator.

Formal grievance

A formal and extensive grievance, restating and adding to the issues previously raised, was then lodged by Ms Brown and sent to the general secretary. This included the handling and requests for the return of her laptop and mobile phone. The general secretary sent the grievance to the personnel officer and to TB, who indicated that he would meet with her in line with the first stage of that procedure, but Ms Brown’s solicitors reiterated that the independent arbitrator should hear the matter (the second stage).

Meanwhile, the general secretary had now left and a meeting was requested with the acting general secretary. He refused, suggesting that ‘dialogue’ between Ms Brown and TB should continue before the grievance was heard at the final stage.

Ms Brown felt that there was no proper attempt to resolve her grievance. She resigned and claimed constructive unfair dismissal. She was wholly unwilling to take part in any stage involving her line manager, the regional secretary (TB). She contended that the union’s failure to deal with her grievance undermined the trust and confidence that must exist. The refusal of the acting general secretary to become involved was the final straw causing her to resign.

Both the grievance procedure, and later ‘Dignity at Work’ procedure, provided for the grievance to be initially raised with the officer against whom the complaint had been made. In this case, that was TB. The union contended that, as this was specifically envisaged, it was inappropriate to amend or alter this element of their agreed procedure. This was an explicit and agreed procedure which Ms Brown had chosen not to adhere to.

The Employment Tribunal rejected this: the failure to progress Ms Brown’s grievance undermined trust and confidence. There was, essentially, no opportunity for Ms Brown to pursue her grievance as it was potentially damaging to her health to have to raise it with her line manager, as he knew.

The Employment Appeal Tribunal agreed and noted the tribunal’s finding that further meetings with TB would further damage her health. In those circumstances, it was unreasonable for any employer to insist upon full compliance with its grievance procedure. Doing so could be a breach of the trust and confidence that is an essential part of any employment contract.

The actions of the acting general secretary, even though they may have been minor, contributed to the undermining of trust and confidence.

The Employment Appeal Tribunal upheld the tribunal’s decision that this was a fundamental breach of contract and she was constructively unfairly dismissed. The GMB should have relaxed their procedure to allow Ms Brown to progress her grievance at the next stage.

Further Comment

In cases where an employee is suffering from a disability, but any grievance, disciplinary or other procedure places them at a disadvantage, varying the procedure may well be a reasonable adjustment.

This case therefore adopts a similar concept, but applied more generally: in cases such as that of Ms Brown, where strict adherence to a policy or procedure could further damage their health, it is reasonable to consider departing from the strict terms of that procedure. This applies even if the procedure is contractual, as not doing so will effectively remove or restrict the employee’s ability to have that issue or grievance resolved.

Strict adherence to the terms of an employment contract will not always protect employers in other circumstances too. There is no general overarching duty for an employer to act reasonably in all circumstances, but there is a duty on employers not to act capriciously or undermine the necessary relationship of trust and confidence.

Martin Cheyne is an employment expert at Hempsons Solicitors.