This case involved an appeal against a decision of the Employment Tribunal refusing permission to amend his claim for unfair constructive dismissal and dismissing it. The claimant was an LGV driver for the Respondent supermarket. He alleged that when he expressed concerns about health and safety issues at the depot, the management had rejected him.

The ET found that at the relevant time, the Respondent's depot had satisfactory health and safety audits. The Claimant had an altercation with a manager and raised a grievance, citing, amongst other things, some health and safety issues. The matter was addressed by the managing director who recognized some of the Claimant’s arguments but ultimately accepted the manager’s account of the confrontation.

The Claimant sought to appeal the decision. A meeting was held during which the manager confirmed the previous decision and the Claimant resigned shortly thereafter, claiming he was deprived of an appeal. The basis of his claim relied on making a public interest disclosure pursuant to the Employment Rights Act 1996 Pt X s103A and ordinary Unfair Dismissal under s98, more particularly, breach of the implied term of trust and confidence. The Claimant wanted to amend his claim to say the grievance process was an express term of his contract but the ET refused this, giving no reasons. The Claimant argued that the ET was excessively restrictive in its interpretation of the implied term of trust and confidence. The Claimant also submitted that an implied contractual term was breached by denying a grievance appeal and that the ET should have made findings as to what happened at the appeal meeting.

The Respondent argued that the grievance procedure did not specify who should hear it. They contended that the meeting on the date in question was an appeal hearing, and as such, there was no failure to hear an impartial appeal, and therefore there was no repudiatory breach. The appeal was allowed.

The court held appeals should be independent and where possible dealt with by a manager not formerly involved, as per Malik v Bank of Credit and Commerce International SA (In Liquidation) [1998] AC 20. Failure to observe a grievance procedure can amount to a breach of the term of trust and confidence. The ET erred in failing to assess what happened at the meeting and whether there had been a breach of the implied term.

The court confirmed that the approach to applications for leave to amend is set out in Selkent Bus Co Ltd v Moore [1996] ICR 836. Key principles of this case include taking into account all the circumstances and balancing the injustice and hardship suffered by both parties should an amendment be allowed or refused. The ET acknowledged that the Respondent was prejudiced by the 19 claim being made at the eleventh hour, but that rested on whether there was trouble in meeting the claim, a matter the tribunal did not deliberate. In failing to decide whether the Claimant would be prejudiced by refusal of the amendment, the tribunals’ assessment was defective. What precisely happened at the appeal remained to be resolved and so the matter was remitted to a different Tribunal. http://bit.ly/17U2WlY