What’s new in Rutnam’s constructive dismissal complaint?

In February 2020 (back when coronavirus was barely a thing – it seems so long ago!) the Permanent Secretary of the Home Office announced in a press briefing that he had resigned from his role because continuing was no longer tenable, given a reported hostile working relationship caused by alleged activities of the Home Secretary Priti Patel and/or those who worked for her. As I said at the time this is close to being unprecedented, at least it was then but recent experience may cause a re-evaluation of that statement.

So, what has changed since February?

Claim made

In February I suggested that it appeared Rutnam had made an employment tribunal claim, this was false. However, on 20 April the FDA union released a statement saying:

This morning, Sir Philip, with the support of his legal team and the FDA, submitted a claim to the employment tribunal for unfair (constructive) dismissal and whistleblowing against the Home Secretary.

FDA General Secretary Dave Penman

Given the the complaint of whistleblowing and dismissal it would have been open (although given the nature of the case difficult to prove) for Rutnam to seek interim relief which would have meant, if successful, that the Home Office would have been obliged to pay his full salary until the resolution of the case. Such a claim has t be lodged within seven days of dismissal so it is clear that this has never been pursued in the case.

Uncapped damages

For most of us mortals the caps on unfair dismissal awards in unfair dismissal claims means very little, few of us earn enough to worry about not being able to obtain compensation in excess of the £88,519. As such Rutnam would have been incapable in an unfair dismissal claim of obtaining an award that even approached the approximate £195,000 annual salary (there is a 12 month’s limit to damages in unfair dismissal).

However, the fact that the fact that the claim includes a claim of whistleblowing related dismissal changes the situation completely and damages will be uncapped in relation to the whistleblowing complaint. Given the level of his salary and the loss of pension contributions from a defined benefit pension one assumes that the value of the claim will be significant. 

 

The FDA as Rutnam’s union are supporting his case and have appointed a QC to represent him.

Supported by Union

Rutnam continues to be supported by his trade union, the FDA union. In a news item on the FDA website the FDA said “The FDA has supported Sir Philip throughout the period leading up to his resignation and will continue to support him throughout the tribunal process. At the time of Sir Philip’s resignation in February, Penman argued that it demonstrated “the destructive consequences of anonymous briefings against public servants who are unable to publicly defend themselves”.

In addition Gavin Mansfield QC, a high profile barrister and head of Chambers, has been appointed by the FDA to lead in the development and presentation of Rutnam’s case. In addition to being a barrister Mansfield is himself a judge in the Employment Appeal Tribunal.   

 

No Inquiry report

Unsurprisingly, in the aftermath of the media and political storm over Rutnam’s resignation the Cabinet Office instigated an investigation into the circumstances and allegations that the Home Secretary had breached the ministerial code (it will be recalled in 2017 Patel did resign from a different ministerial post having been alleged to have breached her duty to uphold the necessary standards of transparency and openness. 

The investigation was initiated days after the investigation was accompanied by a vocal defence of the Home Secretary by Michael Gove in parliament. At the end of April, just before the Home Secretary was to face questions in Parliament it was leaked that the inquiry cleared her of any wrongdoing. The timing of the leaks and the robustness of the investigation was strongly criticised by the FDA who, at the time said:

It tells you everything that is wrong with investigations under the ministerial code that a process which is not written down, which contains no rights for those who might complain, that is determined in secret, alone by a prime minister who has already pledged his allegiance to the minister in advance, and which allows no right to transparency or challenge for anyone who complained, would then be leaked on the evening before the home secretary is due to appear before the home affairs select committee.

That leak was in April. Now, almost six months later, there has still been no formal announcement of the inquiry’s findings. In July the BBC reported on the continuing delays and suggested that there had been plans to publish in or around June but new issues had been raised. The BBC reported that:

One senior official told me the initial inquiry into how the home secretary had behaved hadn’t come up with much, there was nothing really amiss.

Officials in fact had been preparing to publish the outcome more than a month ago.

But then “there was a pause”. And after another bit of work, it’s suggested some issues were uncovered, but that there was no slam dunk finding that would make it impossible for her to stay on in her job.

Two separate sources concur that the inquiry has found some evidence of poor behaviour during her time in government.

But according to the senior official the report itself has since been “parked”.

Similar comments have been made by Nick Thomas-Symonds, a Labour frontbencher just a couple of weeks ago in an interview with the House magazine

Thomas-Symonds also thinks the Home Secretary has questions to answer over the still unpublished Cabinet Office investigation into allegations of bullying. The probe began in March following a blistering resignation speech from former permanent secretary Sir Philip Rutnam … But Thomas-Symonds says the length of time it has taken to release the findings sets an “appalling example” for workplaces. “I think it’s disgraceful it hasn’t appeared, frankly,” he says. “If you were in any workplace in the country and there were allegations around bullying, they should be treated sensitively and seriously and you’d expect them to be dealt with properly.

As it stands however the truth as to whether the the inquiry is in any way critical of either Patel, her staff, or indeed other personnel. In fact,  we do not know whether the inquiry has actually completed its investigations yet. 

It seems to me very likely that the inquiry (or what it has done at the time) will be before the tribunal when the case is heard, even if it has not yet been reported or finalised by then. 

Hearing date

According to a recent article by the Guardian the case has been listed for a ten day hearing beginning in September 2021, which even though just under a year away does seem to be relatively quicker than the timings for other lengthy hearings. Certainly one would expect a claim involving alleged conduct of a specific individual that that person would normally be a witness for a respondent. Interestingly, the Guardian report that the government are expected to resist that, which raises the prospect that the Rutnam will be seeking to compel the Home Secretary to give evidence which strikes me as a risky endeavour. One other prospective witness identified is the then Cabinet Secretary (and former holder of Rutnam’s post) Mark Sedwill who has himself left government with a settlement offer which some commentators suggest is indicative that he too had threatened employment related litigation. 

It is of course possible the hearing will not go ahead because the case is settled but given the reported rejection of settlement discussions in February this looks to be a case where principle itself is an important motivating factor or that the hearing date is changed. However, at present, 20 September 2021 is a date to mark in your diaries.