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Facts
C&J Clark International Ltd (C) had a harassment and dignity at work policy which provided that prompt action had to be taken (within five working days) to deal with allegations of harassment or bullying.
Mr Hatcroft (H) was one of C’s employees. While he was off sick, H complained that he was being bullied by his manager. In response to H’s letter of complaint, C’s regional manager advised him that, when he was well enough to return to work, his concerns would be discussed. This was in line with C’s policy that it would not pursue a disciplinary or grievance matter while an employee was off sick. Unfortunately, this did not appear anywhere as a written statement of policy, and did not feature in the harassment and dignity at work policy with which it appeared to conflict.
H was then off sick for a number of months. However, C did communicate with him over this period.
After about three months, it was arranged that a grievance meeting would be held with H to discuss his complaint. However, H became so distressed at the prospect of the meeting that he wrote to C tendering his resignation. He later claimed constructive unfair dismissal on the grounds that the failure to deal with his grievance promptly in accordance with the dignity at work policy was in breach of the implied contractual term of trust and confidence.
First instance tribunal
The first instance tribunal found that H had been left to dwell on his grievance for four months without a remedy. C failed to bring about a meeting with an independent investigator within a reasonable time and that conduct had the effect of destroying the mutual trust and confidence in H’s contract.
EAT decision
The decision was then appealed and the EAT accepted that, in theory, failure to comply with a stated policy could give rise to such a breach of trust and confidence. The case was, however, remitted back to the tribunal for other reasons.
Comment
It is clear that unilaterally deviating from an express written policy setting out a timetable of steps to be pursued in relation to a particular grievance or disciplinary procedure can amount to a breach of the trust and confidence provision in the contract of employment.
To reduce the risk of such claims it may be helpful to ensure that internal procedures include a flexibility clause that does allow for unilateral deviation. It is also important to ensure that when an employer is going to deviate from a procedure, there is a clear path of communication with the employee in question so that they understand what is happening, and what will take place and when.
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