Not with a bang but a whimper?

I have covered the ongoing constructive unfair dismissal claim and associated matters of the former Permanent Secretary of Home Office Philip Rutnam a couple of times. As has now been widely reported that case, which concerned accusations of improper conduct by the Home Secretary Priti Patel or those who for her, has been discontinued after a settlement has been reached between the Rutnam and the Home Office.

The FDA Union, which backed Rutnam’s claim, released the following statement on his behalf:

I am pleased to say that the Government has today settled the claims that I brought against them and which were due to be heard in an employment tribunal in September.

“I have received excellent support during this process and I would like to express warm thanks to the FDA and to my legal team, Slater and Gordon and Gavin Mansfield QC. I also want to record my appreciation and thanks to the many individuals, known and unknown to me, who have expressed their support throughout.

“This settlement resolves my own case. The FDA is continuing to pursue in separate proceedings the wider issues that have been raised.

“I now look forward to resuming my career.”

The Guardian initially reported that the settlement which will be paid out of the public purse was “six figures”, while the BBC have reported the settlement was £340,000. However, Sebastian Payne a journalist for the Financial Times has reported the total was £370,000, including £30,000 for costs.

Since the general rule in employment tribunals, unlike most civil claims, is that each party is responsible for their own legal costs the reports that the settlement includes a payment of the other side’s legal costs. may well be indicative of the relative merits of the government’s case as such a payment is unusual, but other explanations are of course also possible. After the initial negative briefings against Rutnam it is also potentially significant that the government’s own public statement after the settlement made a point of publicly recording that his conduct was consistent with the ideals of professional and public service:

“Sir Philip Rutnam resigned from his post as Permanent Secretary of the Home Office on 29 February 2020 and subsequently began legal proceedings against the Home Office.

“Joining the civil service in 1987, Sir Philip is a distinguished public servant. During this period he held some of the most senior positions in the Civil Service including as Permanent Secretary of the Department for Transport and the Home Office. The then Cabinet Secretary wrote to Sir Philip when he resigned. This letter recognises his devoted public service and excellent contribution; the commitment and dedication with which he approached his senior leadership roles; and the way in which his conduct upheld the values inherent in public service.

Official Government statement of Rutnam’s Employment Tribunal claim
The Home Office are reported to have agreed to pay out £370,000 to its former Permanent Secretary to settle an unfair dismissal claim.

The settlement is positive news in the sense that it has shown that a trade union can and will support and win even when allegations are against the very highest levels of political appointments (although this was a ‘no liability’ settlement I don’t think this result can be seen as anything other than a win for the FDA and a loss for the Home Office).

Unanswered Questions

Given it is known that there were attempts to settle the case before Rutnam’s press conference announcing his resignation I had expected that the case would go to a full hearing. Now that is not going to happen many civil service employees have expressed disappointment in that the case would shine a light on the realities of ministerial interaction with civil servants. Recent history has seen two high profile cases of alleged misconduct by senior politicians towards civil servants in the Salmond and Patel controversies.

That is not a problem within isolated departments alone and so, for many trade unionists, the fact that these issues will not be ventilated in open proceedings is a frustration together with the impression that those potentially guilty of bullying behaviour can be given a free pass by the government of the day without censure, a privilege that is not extended to civil servants themselves.

It is that sense of inequality, in particular, that has frustrated many as there has been no scrutiny in an independent and public fora of the conduct of a Secretary of State who was alleged to have bullied civil servants, including the claimant Rutnam (by oppressive media briefings). I am surely not alone in having heard many such stories from civil servants working in private offices and similar environments. It is of course important in other respects as well as it is surely a matter of time before the ‘Patel no intention defence’ is regularly appropriated by others accused of bullying within the the civil service.

Readers of the FDA statement may have noticed the reference the FDA “continuing to pursue in separate proceedings the wider issues that have been raised.” This is, I assume, the interesting application for Judicial Review the FDA have brought against the Prime Ministers decision not to require the Home Secretary’s resignation/dismissal/or other sanction after an internal investigation found that she had breached the ministerial code in her conduct to civil servants in her department.

The full findings of the are not available but a two page summary is on the government website and the conclusions as to the Home Secretary’s conduct are critical:

My advice is that the Home Secretary has not consistently met the high standards
required by the Ministerial Code of treating her civil servants with consideration
and respect. Her approach on occasions has amounted to behaviour that can be
described as bullying in terms of the impact felt by individuals. To that extent her
behaviour has been in breach of the Ministerial Code, even if unintentionally.

It is a sad fact that the alleged bullying has now caused either directly or indirectly two civil service careers after, in addition to Rutnam, Sir Alex Allen who led the investigation resigned after the Prime Minister’s decision not to sanction the Home Secretary for the breach.

While many will view the settlement as the end of the saga I think this view is misplaced as the FDA’s JR has the potential to continue to address serious question of the fairness with which government departments treat bullying allegations The FDA’s application is so far as I can identify not been published but the case has been explained on their website:

[The FDA have] submitted a legal challenge to the Prime Minister’s decision that the Home Secretary did not breach the Ministerial Code. This followed an investigation which concluded that she had bullied civil servants, including incidents of shouting and swearing at them.

Despite this evidence, the Prime Minister sought to give weight to the Home Secretary’s assertion that any behaviour was unintentional and he therefore concluded that she had not breached the code.

Our challenge in the court is essentially that the Prime Minister’s decision was irrational given the obligations of the Code, and indeed his own words in its foreword that “there will be no bullying and no harassment”.

It is entirely a matter for the Prime Minister to consider the factors he feels appropriate in determining any sanction following a breach, and that is not a matter on which we seek to intervene. Our contention, however, is that given the clear obligations under the Ministerial Code in relation to bullying and harassment, the Prime Minister’s decision effectively concludes that the Home Secretary did not bully civil servants as she states this was not her intent.

I am not optimistic that will result in the finding the FDA are seeking. The standard to be reached, even if the court finds that it has jurisdiction to hear the case that the Prime Ministers decision was “irrational” which is a legal standard probably even more lax than even employment law’s band of reasonable responses which is widely detested by trade unionists as an unscrupulous employer’s escape hatch. It also risks (I think) the question of constitutional conventions as to expectations of ministers when found to have breached the expectations of their post in respect of personal conduct. This is an area the courts are often refuse to adjudicate upon, a convention being a binding but non-legal rule.

The challenge by the FDA is clearly aimed at the suggestion that the Prime Minister, in exercising his discretion in the way that he did in his response to the Allan Inquiry (the investigation into the allegation of bullying by the Home Secretary) acted irrationally by making a decision that no reasonable person in that position could have made on the material before him. As such, it is aimed at an alleged abuse of executive power and not at the failure to enforce a convention of individual ministerial responsibility. In reality though there is little, if any, clear space between these two issues which is why I think this could be a very interesting case, albeit one I am not optimistic will succeed.

And so, for the time being, despite the settlement the question of whether the Home Secretary bullied civil servants, whether if she did this was “intentional”, and how the law required the Prime Minster to respond to the Allan inquiry, and whether ministers should be made accountable for any misconduct in the same way as the civil servants who work for them is still very much a open question. In this I think the FDA, PCS and all other civil service unions are, and should continue to be, united in campaigning for together.

If you are reading this and you are a civil servant and not a union member then you can (and should) join PCS today. If you are a senior civil servant then you can join the FDA at their website too.

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