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Honesty is always the best policy

Although it may be tempting for an employer to try to “soften the blow” when dismissing an employee, they should be aware that doing so may have serious implications. In the recent case of Rawlinson v Brightside Group Ltd an employer who did not tell an employee the true reason for his dismissal, was held to be in breach of the implied term of trust and confidence.


 Mr Rawlinson (R) was employed as group legal counsel at Brightside Group Ltd (B). B had serious concerns about R’s performance and sought to dismiss him on capability grounds. However, in order to “soften the blow” and attempt to maintain relations, they withheld the real reason for his dismissal and indicated that it was due to a reorganisation. On the reasons provided R felt that the situation gave rise to a TUPE transfer and requested additional information which B was, of course, unable to provide. R resigned in response to the employer’s refusal to provide further information and brought a claim for, amongst other things, constructive wrongful dismissal.

The Employment Tribunal dismissed R’s claims and held that there had been no breach of trust and confidence.

On appeal R was successful in his claim for constructive wrongful dismissal. The Employment Appeal Tribunal (EAT) held that although there was no obligation on B to provide R with a reason for his dismissal, as they had elected to, they had assumed an obligation not to mislead him. Their dishonesty had therefore breached the implied term of trust and confidence. The EAT also held that although R did not know of B’s dishonesty at the time of his resignation, he was entitled to rely upon it for justifying his resignation at the Tribunal, regardless of his reason for resigning at the time.

The EAT also indicated that it was relevant that B’s dishonesty was not completely altruistic as the intention was to maintain a good relationship with R throughout his notice period, in order that he would assist with a handover when his successor was found.

In an effort to avoid lowering morale, employers may find themselves in a situation where, in order to avoid upsetting an employee, they provide a neutral reason for dismissal. This case highlights the risks of that approach.

If an employee has been employed for fewer than 2 years it may be safer to provide no reason for the dismissal. However, employers should be aware that in certain circumstances, employees may take inferences from this and use it as evidence in support of other claims, such as whistleblowing.

If there are concerns over an employee’s capability, the employer should make use of any performance management processes, which, if used properly, would make the employee aware that his performance was the reason for dismissal.

Furthermore, if an employer chooses to withhold the true reason for dismissal, they should bear in mind that it might be revealed should the employee make a Subject Access Request.

Added: 07 Mar 2018 09:30

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