A formal grievance was lodged by Ms Brown on 4 February 2005 objecting to the political role of her job being taken away from her and the way it had been handled. This was the main complaint. Ms Brown complained of the failure to deal with her grievance and the consequences for her health. There were various grievances in respect of other matters, including the removal of the computer and the proposed taking back of the telephone. Her line manager Mr Brennan was accused of being abusive and intimidating at meetings with her in July 2003, and that she was being harassed to the detriment of her health and her future career. The letter was sent to the general secretary, Mr Curran, who passed it to Mr Mendelsohn and sent a copy to Mr Brennan. Meanwhile, the Claimant's entitlement to sick pay expired on 9 March 2005. Mr Brennan was requested to extend the payment of sick pay, but refused to do so.
The Claimant alleged that by insisting on her having to pursue her grievance directly with Mr Brennan, 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, given in particular that the Claimant's health was being adversely affected by direct meetings with Mr Brennan.
The Goold case was quoted whereby there was no practical opportunity for the Claimant to pursue her grievance because it was potentially damaging her health to have to raise the issue directly with Mr Brennan as Mr Brennan knew. The Tribunal accepted this saying,
"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 hardship or 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. (The GMB) in effect prevented the Claimant from airing her grievance effectively and promptly. We find that this was a fundamental breach of contract entitling the Claimant to repudiate the contract."
Regarding the handling of a grievance, the EAT case of Abbey National plc v Fairbrother [2007] IRLR 320 was quoted,
"Accordingly, in a constructive dismissal case involving resignation in the context of a grievance procedure…. it seems to us that it is not only appropriate but necessary to ask whether the employer's conduct of the grievance procedure was within the band or range of reasonable responses to the grievance presented by the employee."
The new GMB Dignity of Work procedure was a negotiated agreement which specifically envisaged that the person raising a grievance of harassment would first have to do so with the alleged wrongdoer. The GMB argued that according to contractual principles it was simply not open to the Tribunal to find that there was a breach of the implied term of trust and confidence in circumstances where the employer was insisting upon compliance with the express term. The GMB argued that an implied term can supplement an express term, or regulate the exercise of contractual discretions, but it cannot simply replace an express term.
The EAT however held that it saw no reason why, in exceptional circumstances, it should not be a breach of the duty of trust and confidence to insist upon compliance with the express terms of the contract.
Moreover, the EAT stated that where unfettered express powers exist, they should be regulated by the trust and confidence term.
Johnson v Unisys Ltd [2001] ICR 480 was quoted whereby an apparently unfettered express term - in that case a right to dismiss on notice but without cause - could be made subject to an implied term to act fairly and in good faith.
Judge Elias commented on the character of the 'final straw' in cases of constructive dismissal, saying that it needed to contribute something to the breach even though the final act might itself be relatively insignificant.
© Workrep 20 / 10 / 2007