The recent case of Rawlinson v Brightside Group Limited 2017 illustrates that sometimes trying to do an employee a favour and hide the fact that the real reason for dismissing them is their performance can come back to bite you. In this case, the employee was not performing as the employer would have wished but rather than tackle that, the employer told him that he was going to reorganise how the work was done and outsource more. One of the motives of the employer in doing it this way was that they very much wanted the employee to work through a handover period. The clever employee worked out that if outsourcing was involved potentially there would be a TUPE transfer and he met a brick wall when he asked for information about this. Clearly the employer was unable to inform and consult with him because there were no real plans to outsource! Rather than stay and do the handover the employer wanted, the employee ended up resigning with a constructive dismissal complaint.
The employee successfully argued at appeal that although the employer wasn’t required to give him a reason for his dismissal, it was under a duty to act in good faith and not mislead him. The employer had breached the implied duty of mutual trust and confidence. The EAT appreciated that the employer was trying to ‘soften the blow’ but noted that the employer wasn’t being entirely altruistic as it had its motives regarding the handover. The employer had intended to maintain trust and confidence and wanted the relationship to continue throughout the notice period. However, the EAT also said that there was an implied obligation not to deliberately mislead. Whilst that didn’t place the employer under a broad obligation to volunteer information, where a choice was made to give information, the duty not to mislead kicked in. This illustrates the need to think very carefully about how you frame, in particular, redundancy exercises that are masking a performance problem.
If the employee chose to do a Subject Access Request under the Data Protection Act would it reveal evidence and pull in text messages or emails that reveal that the ‘real’ reason for dismissal is something different?
In this case giving no reason at all would have been preferable to have achieved a better result. Alternatively, honesty being the best policy, lets just tell people like it is and then there won’t be such hic-cups?