Veitch Penny LLP - Exeter | Crediton, Devon

Case

Fairbrother v Abbey National Plc
Employment Appeal Tribunal - 12 January 2007

Issues

(1) Constructive unfair dismissal
(2) Grievances
(3) Range of reasonable responses

Facts

Ms Fairbrother had been employed as a customer manager by the Abbey National Plc from 1998. She suffered from an obsessive compulsive disorder which became common knowledge during her employment. However during 2002, she was subjected to taunts regarding her OCD. She was also taunted about her slow rate of work and she was ostracised by colleagues. In the end, the two employees at fault would only communicate with her via email.

Ms Fairbrother walked out of the office on 25 July 2003 advising her Area Manager of the problems she had encountered. On 13 August 2003, Ms Fairbrother sent a letter of grievance regarding the events she had suffered. An investigation was carried out and a subsequent grievance meeting held in respect of her allegations that she had been bullied at work and her contention that the Abbey National had mishandled the investigation. Following an appeal process, on 7th June 2004 Ms Fairbrother resigned relying on the employer’s failure to bring her grievance to a reasonable conclusion.

She submitted complaints to the Employment Tribunal of constructive unfair dismissal and for discrimination in respect of her disability. At first instance the Tribunal agreed that she had been constructively unfairly dismissed because of the number of flaws in the lengthy grievance procedure which had led to the employer behaving in a way which was likely to have destroyed or seriously damaged the relationship of mutual trust and confidence between the parties. Furthermore, discrimination claim was upheld.

The employer appealed the matter to the Employment Appeal Tribunal (EAT) submitting that the Tribunal had been incorrect in reaching its conclusions.

Decision

The appeal was allowed.

In the case of a constructive unfair dismissal involving a resignation in this context, it was for the tribunal to consider whether the employer’s conduct of the procedure had been within the broad range of reasonable responses to the grievance presented by the employee and, if so, whether there was reasonable cause for the conduct. The tribunal in this case had based its decision upon faults it had found with the first stage of the grievance procedure notwithstanding the fact that those defects had been cured as the procedure had continued. Consequently she had not been unfairly constructively dismissed.

The tribunal had also erred in connection with her disability discrimination claim. The reason for the treatment she had received was because of the breakdown in the relationship between the parties rather than as a consequence of her OCD.

Comments

This case is of note as it addresses the scope for an employee to make a claim of constructive unfair dismissal based upon the conduct of a grievance procedure. Employers must ensure that all stages of an employee grievance are properly considered and investigated reasonably throughout the procedure. This can be a difficult balancing act in the context of bullying and harassment because the views of the employees involved will be polarised.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.