The FDA union has been busy recently. A couple of weeks ago it was reported that the union were supporting Sonia Khan in an unfair dismissal case arising from her sacking as a special adviser. Having read the basics of that case then, without making any comment on the underlying substantive reasons I think I can confidently predict that there will be either a finding of unfair dismissal or a settlement agreement.
With the news earlier today Sir Philip Rutnam, until today one of the most senior civil servants in the UK and the Permanent Secretary of the Home Office, has resigned in stunning fashion. Rutnam’s statement which was issued to BBC News and issued with the support of the FDA:
“I have been the target of a vicious and orchestrated briefing campaign”
— BBC News (UK) (@BBCNews) February 29, 2020
Before we get to the specifics my union, PCS, has written hoping that this is used to spur on anti-bullying work in the department in thewake of support of Rutnam’s decision:
Our response to the Philip Rutnam resignation 👇👇👇 pic.twitter.com/PH7bV39alf
— PCS Union (@pcs_union) February 29, 2020
Personally, I would have liked to have seen a more forthright statement of support – resigning and deciding to challenge his employers legally and spurning a no doubt substantial financial package in order to do deserves respect.
Such a high profile case does however provide an opportunity to recap what exactly constructive dismissal means. Employees are often familiar with the concept of gross misconduct. Gross misconduct is when an employee breaks their contract so seriously that an employer can summarily dismiss them in response to the breach. Well, constructive dismissal can, in very general terms, be considered the employee’s equivalent weapon of choice.
If an employer breaks the employee’s contract in a serious or fundamental manner an employee can treat the employer’s conduct as grounds to terminate the contract. When the employee has been employed for more than two years he can bring a claim of constructive dismissal (it will be interesting to see whether this will be Sir Rutnam’s claim given the capping of unfair dismissal awards). The legal standard at which a resignation made in response to a breach of contract by an employer becomes a ‘constructive dismissal’ was set out by Lord Denning in Western Excavating Ltd v Sharp  IRLR 27:
If the employer is guilty of conduct which is a significant breach going to the root of the contract of employment, or which shows that the employer no longer intends to be bound by one or more of the essential terms of the contract, then the employee is entitled to treat himself as discharged from any further performance. If he does so then he terminates the contract by reason of the employer’s conduct. He is constructively dismissed. The employee is entitled in those circumstances to leave at the instant without giving any notice at all or, alternatively, he may give notice and say he is leaving at the end of the notice. But the conduct must in either case be sufficiently serious to entitle him to leave at once.
In short, Sir Rutnam will need to show that the way his employer treated him was seriously wrong (it goes to the root of the contract). There is not specific rule that it is only a certain type of type of breach that can amount to a justification for constructive dismissal but in practice three in particular stand out. First, the duty not act in a manner intended or likely to seriously damage the employees trust and confidence in the employer. Second, not to take reasonable care for the employees health and safety. Third, the duty not to subject an employee capricious or arbitrary treatment.
Time will tell what the exact case put forward will be but judging by the content of the press statement it is not hard to see that the allegations of “completely false” briefings against a senior employee could amount to capricious treatment and a breach of the term of trust and confidence. In Hilton International Hotels (UK) Ltd v Protopapa  IRLR 316 an employee was subjected to a verbal dressing down by a manager in front of junior staff. This was found to amount to a fundamental breach of trust and confidence and the employee was fully. The case will of course depend on the findings of fact made. However, there is little doubt that at its highest the conduct here, in which the Secretary of State, or those working for her, is alleged to have mounted a campaign to dismiss a senior employee and smear his reputation through ‘media slurs’ to not just junior employees but the country at large this has the making of a successful constructive dismissal case but this is a case like we have rarely seen before in the Civil Service. The only comparison I could think in recent history is Brodie Clark’s own claim, again against the Home Office, for constructive dismissal in 2011 but even then it is not quite the same level.
The future of this case will be interesting to follow but it is right to also highlight the full text of the the resignation statement. The case is also an important one for civil service trade unionists. My union branch has been raising concerns regarding the mechanisms for holding ministers to account for what what is sometimes mistreatment and bullying – that the employer takes action to address this is a core duty of employers to all staff. Rutnam’s statement makes clear that he believes his treatment arises from his role, as a leader, to hold minitsers to the expectation that they will be responsible leaders who take account of their staff’s wellbeing. That when he did so he alleges he was treated detrimentally should be a concern to all civil servant trade unionists. Rutnam’s statement reads:
I have this morning resigned as permanent secretary of the Home Office. I take this decision with great regret after a career of 33 years.
I am making this statement now because I will be issuing a claim against the Home Office for constructive dismissal.
In the last 10 days, I have been the target of a vicious and orchestrated briefing campaign. It has been alleged that I have briefed the media against the home secretary. This – along with many other claims – is completely false.
The Home Secretary categorically denied any involvement in this campaign to the Cabinet Office. I regret I do not believe her. She has not made the efforts I would expect to dissociate herself from the comments.
Even despite this campaign I was willing to effect a reconciliation with the Home Secretary, as requested by the Cabinet Secretary on behalf of the Prime Minister. But despite my efforts to engage with her, Priti Patel has made no effort to engage with me to discuss this.
I believe that these events give me very strong grounds to claim constructive, unfair dismissal – and I will be pursuing that claim in the courts. My experience has been extreme but I consider that there is evidence that it is part of a wider pattern of behaviour.
One of my duties as Permanent Secretary was to protect the health, safety and well-being of our 35,000 people. This created tension with the Home Secretary, and I have encouraged her to change her behaviours.
I have received allegations that her conduct has included shouting and swearing, belittling people, making unreasonable and repeated demands – behaviour that created fear and that needed some bravery to call out.
I know that resigning in this way will have very serious implications for me personally. The Cabinet Office offered me a financial settlement that would have avoided this outcome. I am aware that there will continue to be briefing against me now I have made this decision, but I am hopeful that at least it may not now be directed to my colleagues or the department.
This has been a very difficult decision but I hope that my stand may help in maintaining the quality of government in our country, which includes hundreds of thousands of civil servants loyally dedicated to delivering this government’s agenda.
I will make no further comment at this stage.
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