Lying to be “kind” can get you into trouble!
Sometimes employers tell me that they want to dismiss an employee for a specific reason, but want to soften the blow (e.g. if they don’t want to hurt the employee’s feelings by saying they are not very good at their job and dismiss for capability) so ask if perhaps they can make the post redundant instead as they feel that is kinder. However, this is not a good idea as Brightside Group Ltd. found out.
In the case of Rawlinson v Brightside Group Ltd such a lie caused the employer problems and eventually led to a successful constructive dismissal claim.
Mr Rawlinson was the Group Legal Counsel for Brightside, an insurance broker. His employer, decided to dismiss him because of concerns over poor performance. However, it had not raised these with him, so they decided not to be entirely truthful about the reason for his dismissal. This was partly to soften the blow and partly to encourage Mr Rawlinson to work his notice period so it had time to recruit a replacement and carry out an orderly handover. Brightside told Mr Rawlinson that a decision had been made to review its approach with regards to its legal service provision and that it had decided to use external lawyers more in future instead. He was given notice of his dismissal.
Mr Rawlinson clearly believed that that if there was going to be an outsourcing of his legal work that he would transfer under the TUPE regulations to become an employee of a new law firm. He asked his employer for the name of the new firm. This was somewhat awkward for Brightside because, having invented an excuse to dismiss him, they actually had no new law firm in mind. Rawlinson resigned on the grounds of the failure to inform and consult, and because he saw it as a breach of contract. He did not work his notice period and pursued a claim to the Employment Tribunal. This went as far as the Employment Appeal Tribunal (EAT).
The EAT agreed that Rawlinson had been constructively dismissed. It is important to remember that employers are under a duty to act in good faith and not to mislead its employees. The misleading information had caused Rawlinson to resign for the wrong reason. However, that was not important as far as the EAT was concerned, because Brightside had wanted the relationship to continue during the notice period and had not just mislead him to be kind – they had other business reasons for doing so. While there was no obligation for Brightside to give the reason for dismissal, once it had chosen to do so, it needed to be truthful.
In this case the EAT concluded that Brightside had mislead Rawlinson to the degree that it had breached the trust and confidence that should have existed between them.
So the moral of this tale is that be truthful when dismissing an employee or rejecting an applicant – it might be uncomfortable at the time, but is better than being taken to an Employment Tribunal for not giving any reason (which might give rise to claims of discrimination), or for not giving the right reason.
Posted on 22 Jan 2018