In Rawlinson v Brightside Group Ltd, Brightside decided to dismiss Mr Rawlinson because of his poor performance. However, rather than telling Mr Rawlinson the genuine reason for the dismissal, Brightside decided to soften the blow by saying there was to be a re-organisation of his work which would be carried out by an external service provider. Brightside wasn't being totally altruistic - it appeared the business wanted to keep Mr Rawlinson sweet so he would work his three month notice period and ensure a smooth handover. Unfortunately for Brightside, Mr Rawlinson, who was their Group Legal Counsel, might not have been performing terribly well in his role but he did know about the Transfer of Undertakings (Protection of Employment) Regulations 2014 ("TUPE").
Mr Rawlinson believed that in a situation where his work was to be carried out by an external service provider TUPE would apply. At the meeting where the dismissal took place Mr Rawlinson asked when the outsourcing would take place and to whom, but was given no response. Mr Rawlinson then stated he believed Brightside were acting in breach of contract and declined to work his notice. There then ensued some correspondence between the parties which included Mr Rawlinson expressing his belief that Brightside were in breach of contract and that he was resigning in response to Brightside's conduct in advising him that his employment was terminated when in fact (or at least so Mr Rawlinson believed) there was a TUPE transfer and his dismissal would be automatically unfair.
It was only after his dismissal that Mr Rawlinson learnt, via information obtained under a subject access request, the real reason for the termination of his employment.
Mr Rawlinson made claims to the Employment Tribunal for compensation for breaches of the information and consultation requirements under both TUPE and the Trade Union and Labour Relations (Consolidation) Act 1992 ("TULR(C)A"). He also claimed for constructive wrongful dismissal on the basis that his resignation was in response to a contractual breach of the implied term of trust and confidence.
The Employment Tribunal dismissed the TUPE claim because, in reality, there was no transfer and dismissed the TULR(C)A claim because there was no redundancy. The constructive wrongful dismissal claim failed as the Tribunal found that the reason for Mr Rawlinson's resignation was his belief that the Brightside's failure to inform and consult was a breach of contract. In particular, the Tribunal found that there was no obligation on Brightside to either give him a reason for termination or forewarn of the intention to dismiss and there was nothing in the way Brightside acted that could amount to a breach of the implied term of trust and confidence.
Mr Rawlinson appealed. The EAT considered that while an employer is not under an obligation to tell an employee the reason for dismissal, where a decision is made to do so it is under an obligation not to mislead or misinform. In this case the reason given to Mr Rawlinson - the reorganisation - was completely untrue and the Employment Tribunal had erred in finding that the implied term had not been breached.
Mr Rawlinson's appeal was therefore allowed and his constructive wrongful dismissal claim was held to have succeeded.
This case demonstrates a couple of important lessons for employers. Firstly, trying to do the best thing for the employee (in this case by softening the blow) can sometimes backfire quite spectacularly on an employer, and honesty, when it comes to reasons for dismissal, is the best policy. Secondly, it shows that where the real reason for dismissal has not been made clear, it is likely that an employer will be found out as a result of any subject access request.