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Why honesty is always the best policy, when it comes to capability

08 December 2017 #Termination

Mr Rawlinson was dismissed by Brightside Group for poor performance, however, to soften the blow, Brightside told Mr Rawlinson that the reason for his dismissal was because his role was being outsourced following a restructure.

Recognising that such a situation could give rise to a TUPE transfer, Mr Rawlinson raised concerns that Brightside had breached its duty to inform and consult and resigned (claiming constructive dismissal) when Brightside refused to disclose the identity of the new provider. He also submitted a Subject Access Request, the results of which revealed the real reason for his dismissal.

The Employment Appeal Tribunal (EAT), finding in favour of Mr Rawlinson, held that when Brightside chose to give a reason for dismissal, there was an implied term not to deliberately mislead. The EAT also noted that Brightside was not acting altruistically by making the reason for his dismissal more palatable.

This illustrates honesty is the best policy when it comes to capability dismissals and that the truth will out, whether that be by disclosure as part of the Tribunal process or, the increasingly used, subject access request.

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Martha Craven

Martha Craven
Trainee Solicitor

E: MCraven@clarkslegal.com
T: 011 8960 4679
M: 077 4863 8845