Priti Patel and Constructive Dismissal

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Not a Priti Picture

It’s no secret that Sir Philip Rutnam (until very recently the most senior civil servant at the Home Office) and the Home Secretary Priti Patel did not get on. But his resignation speech on 29 February, in which he also announced his intention to bring a claim for constructive unfair dismissal, did raise eyebrows.

But by some accounts the tension at the Home Office was between a minister who wanted to pursue changes and an official who was a constant source of resistance. Sources describe him as ‘a political Eeyore,’ a ‘Dr No,’ and cite his difficult relationship with Amber Rudd during the Windrush scandal as evidence that he had a problem with co-operation on matters he did not agree with.  Political commentators have been wearing out their biros and keyboards ever since Sir Philip’s resignation, with countless column inches devoted to the question of whether Priti Patel is a dynamic force for change or an unspeakable bully.

However, from a legal standpoint a better question would be to what extent can a manager insist that an employee change their working habits to fit the requirements of their role?

We look at:

How can you deal with an employee who will not co-operate?

The short answer it can be very difficult to deal with insubordination and the law can be against you as we explain. In practice HR processes only work if you have the time, resources and very important support.

At higher levels matters are often time critical and the role of an employee is to implement not challenge but employment law does not seem to be evolving in response.  The problem is we have one law for a whole range of jobs and one size does not fit all.

  • Spats in the work place can be quietly resolved by moving staff between departments. It typically doesn’t end with a speech in the rain and a trip to court as happened with Priti. But, moving staff around takes takes wherewithal and planning.
  • Insubordination can be dealt with by performance management but this can take months/years and management is never guaranteed they would establish fair dismissal.
  • Re-organisations and redunances are a favourite but with senior jobs that sometimes looks fishy and raises more questions.

What does the charge of Constructive Unfair Dismissal Mean?

Constructive unfair dismissal gives an employee the right to bring a claim for unfair dismissal despite the fact they resigned rather than being sacked. It occurs where an employer has breached an express or implied term of an employment contract, giving the employee a right to treat their employment as terminated, and the employee acts upon this right by resigning. The employee can then bring a claim for unfair dismissal; despite the fact they were never formally dismissed.

The breach must be one which goes to the root of the employment contract – obvious examples include reducing the employee’s pay or fundamentally altering the nature of their work. However, most real-world examples are not so stark. Employees often base their claims for constructive dismissal on a breach of the implied term of mutual trust and confidence, which is a feature of any and all employment contracts. The courts have confirmed that any breach of this implied term will be serious enough to be a potential trigger for constructive dismissal.

When does ‘robust speech’ become a breach?

Disagreements between civil servants and elected ministers do happen. Personalities clash and the high-pressure environment can lead to hurt feelings. But in an environment were frequent changes of the person at the top are part of the job, can differences in management style really amount to a breach of an employment contract?

The leading authority in this area comes not from politics but from banking. The employee claimed that his manager’s frequent swearing and abusive behaviour amounted to a breach of contract which justified his resignation. His manager admitted to having a ‘forceful management style,’ but argued that this was common and to be expected in a high-pressure environment where the material rewards were great and intemperate language commonplace.

In a decision that will upset any real life Malcom Tuckers, the court refused to accept that the frequency of foul language could sanitise its effect or remove its power to offend. The Judge also declined to accept that a different standard of conduct applies to an employer who is paying a very large salary. On the facts, the judge found that the manager’s conduct amounted to a breach of the banking employee’s contract which entitled them to resign and bring a claim for constructive unfair dismissal.

What do you do with a Dr No?

The banking case above shows that an abusive manager can give rise to an employee’s right to claim for constructive unfair dismissal. But beware believing a claim can only be brought against you if you are shouting and swearing; most breaches of contract are decidedly PG. I imagine that when it gets to court the bulk of Sir Philip’s argument will refer to changes to his role required by the Home Secretary, rather than the number of four letter words she employed. If you need your employees to change their ways, how can you get them to do so without breaching their employment contracts?

Tedious but has to be done

The usual answer in any employment context is communication recorded in writing at all times. If you explain to an employee that their working habits need to change and why, it is less likely that they can use the change as a reason for resigning and bringing a claim for constructive unfair dismissal if you have the evidence to prove your motivation.  An important feature of constructive dismissal is that the employee needs to resign quickly after the alleged breach, otherwise they may be deemed to have surrendered their right to object to it. If you have a line of communication with your employee, you are more likely to prevent them resigning as a knee-jerk reaction, and so you protect yourself against allegations of constructive dismissal.

If you do need to get rid of an employee , communication is likewise the best policy – it’s best to follow permitted termination procedures which require contractual notice and consultations with the employee.

Conclusions

There are certainly cases where an employer tries to encourage an employee to resign rather than going through a formal termination procedure, and constructive unfair dismissal is there to protect those employees.  However, in the vast majority of cases where an employer  asks an employee to change their working habits they do so to achieve some aim for the good of the business. Restricting a manager’s ability to manage their teams serves no-one – it’s bad for the business and bad for brand GB. In the political sphere this is characterised as tension between elected ministers and unelected mandarins, but in a business context similar frictions can arise, for instance between a new management team and existing employees.

If you are an employer concerned that the changes required by your business will expose you to claims of constructive unfair dismissal, Gannons would be happy to help you.