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What if the employer fails to deal with the grievance?
[ch 11: pages 74-75]An employer who ignores a grievance or fails to deal with it in a reasonable time is likely to be in breach of the implied duty to deal with grievances reasonably promptly and effectively (see above).
Sometimes employees are tempted to resign mid-way through the grievance process because of unhappiness about how it is being handled. It is important to take legal advice, but there are real risks in resigning at this stage. For example, a tribunal may disagree that the employer has fundamentally breached the contract, instead viewing the employer’s actions as within the “band of reasonable responses” (see page 48). Alternatively, a tribunal could conclude that the member “jumped the gun” by not giving the employer the chance to resolve the grievance.
In Gebremamiam v Ethiopian Airlines Enterprise [2014] IRLR 354 an employer tried to argue that an employee had waived the right to claim constructive dismissal by engaging in the grievance process first before resigning. The argument was given short shrift by the court because every employee has the fundamental contractual right to raise a grievance and have it properly dealt with.
Sometimes an employer’s failure to deal adequately with a grievance amounts to disability discrimination. For example:
Mr Mylott suffered from situational anxiety. His workplace was poorly managed, with evidence of crisis management, poor communication and fire-fighting. Mylott went off work with stress. He lodged a grievance, but it was poorly handled and he was eventually dismissed. The EAT refused to interfere with a tribunal finding that by failing to address his grievance, the employer breached the duty to make reasonable adjustments, because addressing the grievance could have mitigated Mylott’s situational anxiety, helping him to return to work.
Tameside Hospital NHS Foundation Trust v Mylott [2010] UKEAT0399/10/1304
In complex disputes, resolving the grievance can become the main barrier to a successful return. Here is an example:
After many years working for the same employer, Mr Foster’s relationship with his line manager broke down, leading to long-term sickness absence with stress and depression. Foster raised a grievance alleging bullying and harassment. Occupational Health confirmed that his successful return depended on his grievance being resolved, and that the longer the issues went unresolved, the less likely a successful return would become. Eventually, Foster was dismissed for capability. Failing to deal effectively with the grievance amounted to disability discrimination, ruled the EAT. In particular, the employer should have put Foster on a redeployment for other suitable roles, away from his line manager.
Leeds Teaching Hospital NHS Trust v Foster [2011] UKEAT 0052/10/1406