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Employer’s attempt to ‘soften the blow of dismissal’ backfires

Employers should be careful not to mislead an employee they wish to dismiss, even if it's to soften the blow for the person losing their job.

Concealing information can lead to a claim for compensation, as seen in recent case before the Employment Tribunal.

It involved a company that decided to dismiss an employee after becoming dissatisfied with his performance. However, rather than setting out the performance issues, it told the employee that his duties were to be outsourced.

This was intended to "soften the blow" and ensure that he worked his full notice period of three months.

The misinformation led the employee to believe that he should transfer to the new provider under TUPE arrangements and that the company had failed to comply with its duties to inform and consult him. He resigned when the company refused to provide him with details of the 'new provider' who didn't, in fact, exist.

When the truth eventually emerged, the employee took legal action to recover the three months' notice pay that he had lost by resigning.

The case went all the way to the Employment Appeal Tribunal, which found in his favour. It held that it was true that an employer had no duty to tell an employee of the reason for his dismissal. However, if it elected to give a reason, the implied term of trust and confidence required that it should not mislead the employee.

The employee's claim for damages should therefore succeed.

For further advice on any of the issues raised in this article, or for employment law advice more generally, please contact JPP Law on 020 3468 3064 or email info@jpplaw.co.uk

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