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  • Overview

    Dealing with performance issues can be awkward and it can often be easier to put it off and hope that the matter will resolve itself. Many choose to ‘soften the blow’ by giving reasons that do not reflect badly on the employee, like redundancy or reorganisation, what could be wrong with that? That way we can all avoid that awkward conversation that the employee is not meeting the requirements but still achieve the ultimate goal of removing the employee. Yes, that sounds good! Wrong.

    We appreciate that performance issues can be difficult to address. However, organisations must step up to the plate and deal with these head on with clarity and transparency. For many, the above is obvious but those still on the fence about how to tackle the issue of performance, read on!

    Organisations hold with their employees a duty of implied trust and confidence and, it has been held in the recent case of Rawlinson v Brightside Group Ltd that this carries with it an obligation not to mislead and a ‘softening the blow’ in this case led to hardship for the employer, Brightside Group Ltd (BG Ltd), who were then faced with a wrongful constructive dismissal claim.

    So what went wrong? Well, Rawlinson was a new employee with BG Ltd, working as an in-house legal counsel. Within a few months of his employment, BG Ltd decided to dismiss Rawlinson for performance issues, that they had never raised with him and so to ‘soften the blow’ Rawlinson was told that there was going to be a re-organisation whereby BG Ltd would outsource their legal advice and that he would be required to work his three month notice period to effect a handover.

    Rawlinson did not take this news well and resigned with immediate effect and levelled a claim for wrongful constructive dismissal. Initially Rawlinson was unsuccessful at tribunal but on appeal to the Employment Appeal Tribunal (EAT), the EAT agreed with Rawlinson that the false reason for termination amounted to a breach of the implied trust and confidence and so upheld his claim for wrongful constructive dismissal.

    Our comments

    We trust that many of you will read this with your head in your hands wondering how an organisation could even contemplate masquerading a performance issue in this way, good! Keep that mind set and you will avoid making the headlines.

    Despite our cynicism, it is easy to understand why organisations think that they are doing the employee some kind of favour by not telling them the real reasons for dismissal. However, as this case demonstrates, doing so can have unintended consequences.

    In this case, BG Ltd were under no obligation to give a reason for dismissal but, at the point that they chose to volunteer the reason for dismissal, this brought into play the duty of implied trust and confidence and duty not to mislead the employee became a factor. Their false reasons for dismissal instantly breached this and gave rise to the claim for wrongful constructive dismissal. Further, at the time of dismissal, Rawlinson did not know that the reason for his dismissal was a lie and yet this was not fatal to his claim and instead, he was allowed to rely on this once it was discovered.

    Our closing thoughts are that ‘honesty is the best policy’. We strongly recommend that you consider it next time you’re faced with a performance or other issue; be honest with employees. If you think that the employee is unlikely to take the news well, ensure that you have a procedure to follow to ensure that you protect the organisation or make contingency plans. Don’t think that you can sweep it under the carpet and hope that the employee will not find out about it, they may, as with the case above, should information will come out during the course of disclosure or a hearing or in response to a subject access request (which are on the rise).

    If you think you may need to have an ‘awkward’ performance conversation or are unsure of how to put someone on a performance improvement plan, please feel free to give us a call on 01322 623707 or email Alexander.Millward@ts-p.co.uk.

    Find the full case here: Rawlinson v Brightside Group LTD

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Jargon Buster