Bad Grievances and Constructive Dismissal

The EAT has handed down a decision dealing with constructive dismissal (in the context of a grievance procedure which was alleged to have been badly conducted). It is authority for two important propositions.

First, that the 'range of reasonable responses' test applies to the conduct of grievance procedures. Laying this down as a point of general principle, Lady Smith stated it is "not only appropriate, but necessary" to consider whether the employer's conduct of the grievance procedure fell within the band of reasonable responses. She also held that tribunals should not separate out each part of the grievance procedure to see whether it was reasonably conducted; instead, it should be examined as a whole (para. 36).

Second, she stated that in a constructive dismissal case, tribunals should consider the question of whether an employer had reasonable and proper cause for its conduct before going on to consider whether the conduct complained of was calculated or likely to destroy or seriously damage the employer/employee relationship of trust and confidence. This is an important point of principle, as the order does seem to make a difference (Lady Smith's test appears to exclude the impact on the employee as a factor when first considering whether the employer had reasonable cause for acting as it did). This issue will crop up again...

[Thanks to Richard Powell, associate tenant at Littleton Chambers, for sending me this decision]

Abbey National plc v Fairbrother