In the recent case of Rawlinson v Brightside Group Ltd, the Employment Appeal Tribunal has held that Brightside was in breach of the implied duty of trust and confidence and/or to act in good faith, in giving Mr Rawlinson an untrue reason for his dismissal.
Mr Rawlinson was an in house lawyer who had less than two years’ service. Brightside had concerns with his performance and decided to dismiss him because of those concerns. However, in order to retain him at work during his notice period, Brightside did not tell Rawlinson that he was being dismissed for poor performance but rather, that internal legal support was being outsourced and therefore that his role was ‘redundant’.
This prompted Rawlinson to claim that the outsourcing of the legal function amounted to a TUPE transfer, and that Brightside had failed to inform and consult with him as required by TUPE. When Brightside failed to engage in any consultation or to provide Rawlinson with the information he would have been entitled to under TUPE (had there in fact been a transfer), Rawlinson resigned without notice saying that the company was in fundamental breach of contract and he therefore brought claims under TUPE and for constructive wrongful dismissal in respect of his notice period.
At the first instance hearing before the Employment Tribunal, the constructive wrongful dismissal claim failed on the basis that Brightside were not under an obligation to provide reasons for the dismissal and therefore there was no fundamental breach of contract by Brightside which entitled him to resign and bring a claim for constructive wrongful dismissal. On appeal it was decided that, although Brightside was not under a statutory obligation to give a reason for dismissal, in choosing to do so it had assumed an implied contractual duty not to mislead Rawlinson which it had breached by giving a false reason and in response to which, Rawlinson had resigned.
This decision is a reminder that whilst it may be tempting to sugar coat a performance related termination by giving a different, less personal reason for dismissal, in reality, honesty is the best policy.
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