In Blackburn v Aldi Stores Ltd, B’s grievance appeal was handled by the same manager who had heard the grievance, contrary to Aldi’s own procedure. The tribunal rejected B’s constructive dismissal claim, founded on a breach of the implied term of trust and confidence, on the basis that in the absence of any pleaded argument that the procedure was contractual, it did not need to consider any potential breach of an implied term.

The EAT upheld B’s appeal. The tribunal had erred. It appeared to think that in the absence of a breach of an express term, then what actually took place at the appeal hearing, was irrelevant. That error was compounded by the fact that the ACAS Code of Practice provides that an appeal should be dealt with impartially and wherever possible by a manager who has not previously been involved in the case. Even where a grievance procedure is not contractual, then a failure to follow it is capable of amounting a breach of trust and confidence and so the case would be remitted to the tribunal to decide if such a breach had occurred. The EAT pointed out that wholesale failure to respond to a grievance, may well amount to a fundamental breach of trust and confidence, as would the failure to provide an appeal, or an impartial appeal, in accordance with the Acas Code, and it was difficult to understand why an organisation the size of Aldi could not have made provision for an impartial manager to hear the appeal.