When an employee raises a grievance because of bullying or harassment by other members of the workforce, it is sometimes very difficult for the employer to ensure that the outcome of the grievance procedure is satisfactory in the eyes of the person who has made the complaint. The Employment Appeal Tribunal (EAT) has considered in what circumstances the dissatisfied employee is entitled to resign and claim constructive dismissal (Abbey National plc v Mrs E Fairbrother).
Mrs Fairbrother was employed by Abbey as a customer manager from 1998 to June 2004. She has Obsessive Compulsive Disorder (OCD). Initially, she had a good relationship with all of her colleagues. However, this changed at some point in the middle of 2002. From that time, Mrs Fairbrother and another colleague were subjected to unpleasant behaviour on the part of two women in the office. A trainee was also treated in the same way.
On 25 July 2003, Mrs Fairbrother left work in tears after one of the women had shouted at her. She telephoned the area manager who conducted an investigation and suggested an informal resolution. On 29 July, Mrs Fairbrother was signed off sick. She was encouraged to return to work thereafter but she did not agree to do so. She wanted the two women who had taunted her to be separated but the area manager was not prepared to consider that. In his view, she was the one making allegations about the conduct and behaviour of fellow employees, so it was she who would have to be relocated. Mrs Fairbrother sent a grievance letter, dated 13 August, to the area manager complaining that his investigation of the sensitive situation had been badly handled. She subsequently sent Abbey two further grievance statements, the second of which dealt with events prior to July. Abbey initially ignored the second of these as they considered that it had been submitted late.
Two further grievance hearings were held and Mrs Fairbrother's second statement was considered but in February 2004 her grievance was finally dismissed. In June 2004 she resigned, because of Abbey's failure to bring her grievance to a reasonable conclusion, and brought a claim for unfair constructive dismissal and disability discrimination.
The Employment Tribunal (ET) found that Mrs Fairbrother had been constructively dismissed and that she had suffered disability discrimination on account of her OCD. The company appealed to the EAT.
The Employment Rights Act 1996 states that an employee is entitled not to be unfairly dismissed. An employee will be treated as dismissed if she is entitled to terminate her contract because of her employer's conduct. The EAT ruled that in considering whether an employer's conduct entitles the employee to terminate her employment contract and claim constructive dismissal, three questions must be considered:
1. Firstly, what was the conduct complained of?
2. Secondly, did the employer have reasonable and proper cause for it? If yes, the employee was not constructively dismissed; and
3. Thirdly, was the conduct calculated to destroy or seriously damage the employer/employee relationship of trust and confidence?
The EAT judged that whilst the employer has a duty to act reasonably, it must be allowed a measure of discretion as to how to conduct its business affairs. In its view, Abbey did have reasonable and proper cause for its conduct during the grievance procedure and thus the appeal was allowed.
Where the conduct complained of relates to the outcome of a grievance hearing, the EAT said that the 'range of reasonable responses test' applies to the operation of grievance procedures - i.e. whether the way the employer acted was within a band of reasonable responses that a reasonable employer would have made.
As regards the claim of disability discrimination against her employer, the EAT judged that the ET had erred in its finding. In order to succeed in her claim, Mrs Fairbrother had to demonstrate that Abbey's treatment of her related to her OCD. The other woman who was also subjected to unpleasant behaviour was clearly an appropriate comparator and Mrs Fairbrother was not treated any less favourably than she had been. Her claim was therefore dismissed.
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