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Flexible Approach in the Grievance and Disciplinary Procedures

25 October 2007

The Employment Appeal Tribunal has upheld a decision supporting an employee’s claim for constructive unfair dismissal on the basis that her employer refused to vary its grievance procedure to deal with her specific complaint.
Ms Brown had a grievance against her line manager, a regional secretary of the GMB, flowing largely from the breakdown of their working relationship. She did not want him to deal with the grievance himself, as she was suffering from stress, and wanted somebody else to hear the grievance. The manager refused to vary the contractual grievance procedure, which provided he should hear the grievance first, resulting in months of argument, stress absence and eventual resignation by Ms Brown and a claim for constructive unfair dismissal.

The Tribunal noted that Ms Brown’s health was suffering. Ms Brown alleged that by insisting on her having to pursue her grievance directly with her line manager, the union as her employer had undermined trust and confidence in the employment relationship. They ought to have been willing to display some flexibility in the operation of their procedures. On this basis Ms Brown’s constructive dismissal claim succeeded.

Suggestions for employers as summarised by the Tribunal:

• It is widespread and good industrial practice to adopt a flexible approach to grievance and disciplinary procedures in circumstances where the rigid application would result in potential unfairness.

• Where an employer knows that an employee is unable to meet with the person against whom the complaint is made, then arrangements will usually be made for the grievance to be heard by an independent person.

• If, as in this case, the person making the grievance has become ill as a result of that breakdown, then a good employer would not want to risk aggravating that illness by enforcing further confrontation between the parties.

GMB Union v Brown [2007] UK EAT

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