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16th September 2016

Tribunal Tale – Can a failure to handle a grievance properly amount to constructive dismissal?

In Nicholson v Hazel House Nursing Home Ltd, the Employment Appeal Tribunal (EAT) has confirmed the position established in WA Goold (Pearmak) Ltd v McConnell and another [1995] IRLR 516 that handling errors or inadequacies in a grievance procedure can amount to constructive dismissal.

The claimant in this case was pregnant and suffered from terrible morning sickness. At her request her shifts were changed to afternoons to accommodate this. Her employers then unilaterally reduced her shifts from 5 to 3 per week resulting in her earnings falling below the lower earnings threshold for Statutory Maternity Pay (SMP). The employer did not advise the claimant that she would only qualify for Maternity Allowance (MA) and not SMP.

The claimant raised a grievance which was inadequately handled by the employers and rejected by a manager without having spoken directly with the claimant. The claimant appealed the decision but ultimately resigned, bringing a claim for pregnancy discrimination and constructive dismissal.

The Employment Tribunal (ET) rejected her claims. The claimant appealed and the EAT allowed the appeal stating that the ET had misdirected itself and substituted a finding in the claimant’s favour. The discrimination she faced together with her resignation following the wrongful rejection and handling error of her grievance was enough to establish unfair constructive dismissal.

It is important for employers to follow grievance procedures properly and in accordance with the ACAS Code of Practice. Failure to follow grievance procedures properly or where handling errors occur during the procedure, which are not managed appropriately or corrected, can leave employers open to challenge.

If you have any questions on any of the issues raised in the above article, please contact Alan Sutherland.

16th September 2016