The claimant worked as Group Legal Counsel at the respondent insurance broking business. Shortly after he started, concerns were raised about his performance. Although he knew that certain matters needed to be addressed, there were no specific concerns raised with him. A decision was made that the claimant would be given notice and required to work his notice period to allow a handover to his successor. It was decided not to tell him the real reason for his dismissal but rather that his dismissal was because of a restructuring of legal services.

The claimant resigned on the basis that that any outsourcing would amount to a 'relevant transfer' under TUPE and the company was breaching its statutory obligations. He brought various claims in the employment tribunal, including a claim for constructive dismissal. The original employment tribunal rejected the claim holding, among other things, that nothing in the way the respondent conducted itself amounted to a breach of the implied term of mutual trust and confidence.

The EAT allowed the appeal and substituted a finding that the claim succeeded. It concluded that, in all but the most unusual of cases, the implied term of mutual trust and confidence must involve an obligation not to deliberately mislead.  The tribunal had erred in failing to find that the implied term had been breached. The appeal was allowed.

Practical Lessons

The respondent’s argument that it had only intended to ‘soften the blow’ to be dealt to the claimant is something the tribunal was familiar with. However, the EAT noted that a self-serving element did exist: the respondent sought to retain the claimant for his notice period to enable it to organise a replacement and allow for a smooth transition.

As demonstrated here, an excuse intended to make letting an employee go more easily can end up having unforeseen consequences.  Ultimately, being up-front with an employee is less likely to cause such complications. The result of the case here was actually counterproductive for the employer: the employee left his post and there was nobody there for the transition period and the handover of work.
https://assets.publishing.service.gov.uk/media/5a141bd840f0b627df2141fc/Mr_L_Rawlinson_v_Brightside_Group_Ltd_UKEAT_0142_17_DA.pdf