Rawlinson v Brightside Group Ltd UKEAT/0142/17/DA

Appeal against the dismissal of the Claimant's claim of damages for loss of notice pay, in circumstances in which it is said that the employer acted in breach of the implied obligation to maintain trust and confidence by giving a misleading reason for the employee’s dismissal. Appeal allowed.

The Respondent was concerned about the Claimant's performance and had decided to terminate his contract. However, to soften the blow, the Claimant was told that the reason for his dismissal was a review of legal services and not solely his performance. The Claimant was shocked by this and his immediate reaction was that if the Respondent was going to outsource legal services this would be a relevant transfer and he would be covered by TUPE. The Claimant resigned expressing his view that the Respondent was in breach of contract and that he was resigning in response to the Respondent's conduct in relation to advising him that his employment was terminated because there was a TUPE transfer, which the Claimant said he considered to amount to automatic unfair dismissal. Thereafter, in further email correspondence, the Claimant made clear his belief that TUPE applied and the Respondent was in breach of the information and consultation obligations thereunder. It was only after his employment had terminated that the Claimant began to learn, through disclosure from the Respondent under a subject access request, of the real reason for the termination of his employment. The Claimant had pursued claims before the ET under TUPE, for breaches of the duty to inform and consult on a service provision change, and, under TULRCA, for breach of the consultation requirements on a collective redundancy. He also claimed damages for constructive wrongful dismissal, contending he resigned in response to a fundamental breach of contract, namely the implied obligation to maintain trust and confidence. The Respondent denied the claims and lodged its own contract claim, in respect of an overpayment made to the Claimant after his resignation had taken effect and he was no longer working. The ET dismissed the Claimant's claims and allowed the Respondent's claim. The Claimant appealed.

The EAT allowed the appeal. In considering whether there had been a breach of the implied term, the ET had erred in approaching this by only considering the absence of a duty to tell an employee of the reason for dismissal and/or to dismiss in good faith in general terms. It had failed to consider the position where, as here, the Respondent had chosen to give a reason for the dismissal to the Claimant.


Published: 05/12/2017 14:26

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