Think before you speak

06 Dec 2011

On 7 November, Theresa May, Home Secretary, made a statement saying that Brodie Clarke, the Head of the UK Border Agency, had relaxed immigrations controls beyond what had been asked of him; therefore highlighting his alleged mistakes for all the world to see.  What followed was a whirl of media hype, strong public allegations and criticisms made by Theresa May, who was, in essence, Mr Clarke's employer.

Jonathan Baume from the First Division Association, the trade union which represents civil servants, said that Mr Clarke was willing to answer the issues raised internally "but instead he was suspended and the Home Secretary has spent two days basically traducing him and damning him without ever giving the Civil Servant the opportunity to present [his] case".

Mr Clarke responded to the statements made by Mrs May by tendering his resignation on 8 November.  He stated that his position had become "untenable".  He continued by saying that "the statements are wrong and have been made without the benefit of hearing my response to formal allegations".  His resignation not only allows him to publically speak out about what happened but also allows him to bring a claim of constructive dismissal.

Mr Clarke is now bringing a claim on the basis that Mrs May's actions have destroyed his reputation, which has, in effect, terminated his contract of employment (i.e. he has been "constructively dismissed").  In summary, Mrs May has breached the implied term of trust and confidence that should exist between an employer and employee.

We have a lot of sympathy with Mr Clarke as he has been publically 'run down' by his employer without the benefit of a full investigation into what actually happened.

This escalating case, of which you can be sure we have not heard the last, acts as a good reminder to all employers to think very carefully before openly declaring that an employee has done something wrong, without first speaking with the employee involved and conducting an appropriate investigation.

So, as we continue to watch the events of the Clarke and May situation unravel before us, it is worth bearing in mind the very core issues which have lead Mrs May to the uncomfortable situation that she is now facing.

It should be noted that a case of constructive dismissal can be very difficult to prove as the employee needs to show that there has been a serious breach of contract by their employer and that, due to that breach, they felt forced to resign.  In such cases, the burden of proof lies very much with the employee.