09 Nov 2011
Stakes are high for UK Border Force chief as he lodges constructive dismissal claim
Following news that UK Border Force chief Brodie Clark will lodge a claim for constructive dismissal, Lawrence Graham's head of employment, Yvonne Gallagher, commented:
"Constructive dismissal requires the employee to show that the employer's behaviour has been so seriously wrong as to amount to a breach of the contract entitling the employee to treat himself as having been dismissed. The employee will then be entitled to bring a claim for payment for his notice period and to allege that he has been unfairly dismissed. The employer of course may never have intended dismissal at all.
"In this case, the term which Mr Clark will say has been broken is that of 'mutual trust and confidence', a term implied by law into employment contracts and which requires the employer not to take action which damages the relationship of trust and confidence between the two parties.
"Public criticism of an employee can amount to such a breach but it will have to be regarded as unfair and excessive.
"It is generally unwise and inappropriate for an employer to comment publicly on the conduct of an employee, especially ahead of a full investigation. However, a home secretary is of course required to account to parliament for the actions of her department and so if this case comes before the courts, the judges will have to find the balance between her obligations to parliament and to an individual employee in deciding whether Mr Clark is indeed entitled to succeed in his claim. In practice he will have to show that the comments were wrong or unfounded.
"The courts do apply a high standard to constructive dismissal claims such that they are not easy for an employee to bring, so the stakes for Mr Clark are high. He is now not in employment and must succeed in his claim in order to receive any payment."