Should Sir Philip Rutnam , the departing Permanent Secretary for State of the Home Office follow through on his threat to make a claim for unfair constructive dismissal it will be an interesting case to follow. Constructive dismissal claims are notoriously difficult for a claimant to win and Sir Philip will, I assume and hope, have the same hoops and hurdles to jump through as any other ‘wronged’ employee. For starters, one wonders whether he exhausted the requisite internal procedures in an attempt to resolve the concerns he had with his employment before deciding that he had ‘absolutely no alternative but to resign’ (this being a key test in a constructive dismissal claim). Did he, for example initiate the processes required by lesser mortals and raise his concerns with his boss, Sir Mark Sedwill, in writing, detailing the substance of his grievance and providing evidence to support his complaints? If so, were the matters surrounding his grievance subjected to a ‘reasonable investigation’ in order to establish the facts and a meeting convened to discuss these complaints? Was a meeting held (and if so was Sir Philip accorded the right to be accompanied by a work colleague or a Trade Union Representative) and was the meeting conducted in a proper manner? Was the outcome of the meeting communicated to him and was he given the opportunity to appeal the outcome. And if so, was such an appeal made. In other words, did Sir Philip and the Home Office follow the ACAS Code of Practice 1 on disciplinary and grievance procedures? One suspects not!
From the manner of his departure, it would seem more likely that Sir Philip may have just decided that for him, enough was enough and penned a quick resignation letter, the essence of which he then very publicly presented to news cameras. If this was indeed the case, Sir Philip should, if the same rules apply to Whitehall Mandarins as they do to the rest of us, face a few difficulties in pursuing a claim. For example, he may have some difficulty in explaining why he did not exhaust available internal procedures before resigning. He will also, no doubt, need to apply to ACAS for Early Conciliation before submitting his ET1 Claim Form. Should he get as far as a Tribunal, he will need to provide concrete evidence to demonstrate that he had ‘absolutely no alternative’ but to resign and provide evidence of the efforts he has made to mitigate his loss. Providing mitigation evidence is incumbent upon all claimants at a Tribunal, so the production of documentation to evidence attendance at Job Centre Plus interviews, evidence of job search activity and job applications and the like. Should his claim be successful, he would be awarded a Basic Award for unfair dismissal and, possibly, a separate Compensatory Award relating to the actual loss he has suffered as a result of such dismissal (this would equate to what he would have earnt had he not been ‘unfairly dismissed’). The maximum Basic Award that a Tribunal can make is currently £15,750 and the maximum Compensatory award is capped at £86,444. In calculating any Compensatory Award, the Tribunal will take into consideration the extent to which the claimant contributed towards his or her dismissal; be this ‘constructive’ or otherwise, the efforts (or lack of) the claimant has made to mitigate his or her loss, whether the claimant has secured fresh employment etc. As a result, Compensatory Awards rarely extend to anywhere near the maximum amount a Tribunal can make at its discretion. Of course, we don’t know whether Sir Philip may be able to argue a breach of contract claim in the form of a Wrongful Dismissal in addition to Unfair Dismissal, possibly occasioned in the event that his employer failed to honour a contractual term in his contract of employment. Such a claim would be restricted to the actual financial loss suffered by Sir Philip arising from such a breach. We also don’t know whether Sir Philip has been discriminated against on the basis of any protected characteristics he may possess. However, this would seem unlikely from what we know of him and the circumstances.
In practice, and much as seeing Priti Patel ‘witness ordered’ to give evidence at an Employment Tribunal is a delicious prospect, I would suggest that there will be no such litigation. Rather, the matter will be ‘closed down’ with some form of Settlement Agreement, affording mutual confidentiality, an appropriately generous ex-gratia payment (at taxpayers’ expense) in settlement of all Sir Philip’s claims and which will probably allow for an ‘early retirement’ arrangement whereby Sir Philip will be able to draw his full pension at the relatively tender age of 54.