Rawlinson v Brightside Group Ltd

This Employment Appeal Tribunal case concerned ‘constructive dismissal’. You will most likely have come across this term before, although sometimes it is misused. A constructive dismissal is where an employee is entitled to resign and treat themselves as dismissed because of the actions of their employer – they must show that the employer has breached the contract of employment in such a way that meant they could not continue in their employment.

Probably the most common alleged breach of contract is a breach of the ‘implied duty of mutual trust and confidence’. Although this is not expressly written into the contract of employment, it is implied by case law which says that an employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee.

It can be difficult for an employee to bring a successful constructive dismissal claim as they must show that there has been a breach and that they resigned in response to that breach, both of which are high hurdles.

In this case, Brightside Group Ltd had concerns about Mr Rawlinson’s performance. He was aware that there were some issues, but no formal procedures were followed and no specific problems identified or discussed with him. Brightside Group Ltd decided that they would dismiss Mr Rawlinson but, instead of telling him that the dismissal was related to his performance they would tell him that it was due to a restructure of the team he worked in which included some outsourcing. Mr Rawlinson (quite rightly) said that if his work was being outsourced then his employment should transfer under the Transfer of Undertakings (Protection of Employment) Regulations (a.k.a. TUPE) to the provider. Brightside Group Ltd refused to tell him who the provider was.

Even though he had been dismissed and was within his three month notice period, Mr Rawlinson resigned and refused to work his notice period. He claimed constructive “wrongful” dismissal.

He couldn’t claim constructive “unfair” dismissal because he did not have the necessary two years’ continuous service. However, he could claim constructive “wrongful” dismissal for the balance of his notice pay

The Employment Appeal Tribunal held that although Brightside Group Ltd had been trying to soften the blow by not telling Mr Rawlinson about his performance failings, they had a duty not to mislead him. He was awarded the balance of his notice pay.