Could Clark Saga be Borderline Constructive Dismissal?

The Brodie Clark case illustrates the supreme importance of thinking clearly in every organisation about the critical question of accountability. A senior and very long-serving public servant has already lost his job because of this row.

Brodie Clark's dramatic suspension as head of the UK Border Force Mr Clark was suspended after claims he eased passport checks at UK borders.

He told BBC Radio 4's Today that, with hindsight, he should have checked "more thoroughly" what Mrs May knew, but disputes ignoring government policy. In addition to the political implications, the story raises fascinating questions about the relationship between senior executives and their bosses, and about accountability for key management decisions.

Of course, the relationship between civil servants and their ministers is unique, differing in several ways from the conventional employer-employee dynamic. A case involving a possible scandal about immigration is bound to be played out in the glare of intense media attention. But there are some wider issues that are relevant in many cases involving senior managers.

Politicians, however senior, need to be mindful of the rights of public sector executives under employment law. The result, in short, could be a huge cost to the public purse.

Brodie Clark was suspended because of his alleged responsibility for relaxing some immigration checks beyond what Home Secretary Theresa May had agreed to in a trial. The Home Secretary criticised him publicly, Mrs May has said she authorised the relaxation of some checks on children from the EEA and some extra checks on EEA adults under "limited circumstances" at peak times - but claims Mr Clark allowed officials to go further, without ministerial approval.

She has since announced three inquiries into what happened, the main one led by the Chief Inspector of the UK Border Agency, John Vine. Mr Clark has since announced his intention to sue for constructive dismissal, accusing the Home Secretary of destroying his reputation by alleging that he eased border controls without her permission, and his trade union has argued that he was not given a proper chance to defend his actions.

There can be little doubt, however, that a high-profile employer who criticises a senior executive as plainly and openly as Mr Clark has been criticised needs to be extremely confident that he is on safe ground. And, unless a proper investigation has been undertaken, it isn't easy to have that degree of confidence.

On the other side of the fence, employees need to be aware that leaving their job and claiming constructive dismissal is a high-risk tactic, even if they feel they have been appallingly treated. There is an unusual element in the Brodie Clark case, because his resignation as a civil servant means he is now free to speak out about the situation in a way that would otherwise have been difficult.

Most employees would need to think twice - at least - before giving up a highly paid job in similar circumstances. There are significant practical difficulties associated with claiming constructive dismissal. For instance, the employee needs to prove that he has been treated so appallingly that it did amount to being given, in effect, the sack.

Even if this can be done, the problems don't end there. If the employee does not have another job to go to - preferably commanding a similar pay and benefits package - he faces uncertainty and unemployment. There is something of a Catch-22 about constructive dismissal claims. If one has walked straight into an equally good job, and suffered no financial loss, the value of the claim may be relatively low.

Yet if the case reaches an employment tribunal, and the person is still out of work and in line for a large compensation award, it may still not make up for the damage done to his career prospects and morale. In many cases, litigation is best viewed as a last resort.

Finally, the Brodie Clark case illustrates the supreme importance of thinking clearly in every organisation about the critical question of accountability. A senior and very long-serving public servant has already lost his job because of this row. It remains to be seen whether the Home Secretary will have to resign herself, continue in post but having sustained serious damage, or be vindicated for taking swift and decisive action. Whatever the truth of it, the story seems set to provide plenty of food for thought for managers, as well as for ministers and civil servants.

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