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A Reason to Believe

30th November 2017

By Andrew Knorpel, Head of the Employment team

Earlier this year in my You are Hereby Terminated article, we saw how President Trump explained his reasons for firing James Comey, his FBI director. Although his reasons did not necessarily line up with the genuine views of others, it may well be the case that he had “alternative facts” (borrowing a phrase from the US Counselor to the President) on which he was relying.

However, the trouble with “alternative facts” is that they can get you into trouble when you trot them out in lieu of the truth. This is what happened in Rawlinson v Brightside Group Ltd.

In this case, Mr Rawlinson (Group Legal Counsel) was told by Brightside that they had reviewed their requirement for in-house legal services and had decided to use more external firms. He was then given three months’ notice of termination which Brightside wanted him to work. Mr Rawlinson believed that the outsourcing of legal services would amount to a TUPE transfer and asked to whom the legal services were being outsourced. When Brightside refused to tell him, Mr Rawlinson resigned, alleging that he had been constructively dismissed and wouldn’t be working his notice.

What Brightside hadn’t told Mr Rawlinson was that his poor performance was the real reason for his dismissal, the details of which had never been brought to his attention. Although they had wanted to soften the blow, rather than reveal the real reason, they had also needed him to work his notice so that they could sort out his replacement.

The employment tribunal found that Brightside had not been required to tell Mr Rawlinson of its real concerns or that poor performance was the real reason for his dismissal. He had less than two years’ service and so didn’t have the statutory right to be given reasons for his termination. There was therefore no breach of the implied term of mutual trust and confidence and his claim for constructive dismissal was dismissed.

However, the EAT held that an employer had an obligation not to deliberately mislead an employee. Without that obligation, the implied term of mutual trust and confidence would not be able to function. The fact that Mr Rawlinson had not been aware of the real reason for his dismissal at the time was irrelevant. The EAT overturned the tribunal’s findings and held that Mr Rawlinson had been constructively dismissed, entitling him to receive a payment in lieu of notice.

And if you’re wondering how Mr Rawlinson came to find out the real reason for his dismissal, you won’t be surprised to learn that it emerged as a result of Brightside’s response to a data subject access request.

The contents of this update are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this update. © Mundays LLP 2017.

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