Sir Philip Rutman, permanent secretary at the Home Office, has resigned and is claiming constructive unfair dismissal. 

As Sir Philip will have been advised, constructive dismissal is notoriously difficult to prove.  It occurs where the employer has committed a fundamental breach of the employee’s contract of employment. The employee resigns in response to that breach and brings proceedings against the employer, seeking compensation for their loss of employment. 

Elements of a claim for constructive dismissal

To be successful in a claim for constructive dismissal the employee must prove that:

a) The employer was in breach of an express or implied term of the contract of employment. 

An express term is a written term of the contract.  By way of example, a failure to pay the contractually agreed wage is likely to provide good grounds for a claim for constructive dismissal. 

The employer’s duty not to destroy or seriously damage the relationship of trust and confidence that exists between the employer and the employee, is a term implied into employer/employee contractual relationship. In his recent public statement, Sir Philip identifies the following behaviours on the part of the Home Office, which he claims breached the implied term: 

1. A vicious and orchestrated briefing campaign where it was alleged that he briefed the media against the Home Secretary, Priti Patel; and 
2. The tension that was created between him and the Home Secretary, when he encouraged her to change her behaviours, in the face of complaints from civil servants that her conduct included shouting and swearing, belittling people, making unreasonable and repeated demands and behaviour that created fear.

b) The breach of contract was repudiatory.

A repudiatory breach of contract is one which goes to the root of the contract and shows that the employer no longer intends to be bound by at least one of its key terms.  The breach must be sufficiently serious to justify the employee’s resignation.  It may be a one-off event, or a course of conduct by the employer, culminating in a ‘last straw’ event.  This is fact sensitive and each case will be judged on its merits.  Sir Philip alleged that the above-mentioned course of conduct was so serious as to constitute a fundamental breach. 

Sir Philip alleges that he has strong grounds for his claim. He says that he has gathered a catalogue of complaints against the Home Secretary and has demonstrated to her that he is willing to engage in a reconciliation process.    He claims that she has made no effort to engage with him with a view to resolving the issues.  In all but the most serious of cases an employee is expected to attempt to address the issues that have arisen with the employer, by availing of the employer’s grievance procedure.  Sir Philip appears to have ticked this box by seeking to address the issues with the Home Secretary. 

c) The resignation must be in response to the breach.

To succeed in a claim for constructive dismissal the employee must show that the employer’s behaviour was the principal reason for the resignation.  A carefully worded letter of resignation will be a valuable piece of evidence in any subsequent litigation, as it will show what was going through the mind of the employee at the time of the resignation.   Employees would be well advised therefore to seek legal advice before drafting their letter of resignation. 

d) The employee must not wait too long in resigning in response to the breach.  

If the employee delays too long after the breach before resigning and continues to work and receive wages, the Tribunal may find that they waived the employer’s breach of contract and affirmed their contract.  This is a real risk for employees and could potentially destroy even the strongest of claims for constructive dismissal. The Tribunal has been clear that “The employee cannot say on the one hand that he has lost trust and confidence in his employer, and on the other that he is going to continue to work for the employer and accept wages until it is convenient for him to leave.  If he does not act promptly he is taken to have affirmed the contract, which is to say that he is taken to have forgiven the fundamental breach.” 

In a recent case in the Jersey Employment & Discrimination Tribunal, an employee narrowly escaped an employer’s attempt to strike out their claim for constructive dismissal at an early stage.  The employee had drafted his Tribunal claim form without the benefit of legal advice. The employee had given an indication in this claim form that when he resigned all was not lost and that the relationship could be repaired.  The employer argued that if the relationship was “fixable” it was not a repudiatory breach of contract. Fortunately for the employee, the Tribunal rejected the application to strike out the employee’s claim and a full hearing of the evidence will take place. This Employee still faces the hurdle of dealing with the unfortunate wording of his claim form at the full hearing.  The Tribunal places much weight on the content of a claim form and ideally this should be drafted with the benefit of legal advice.   

Settlement

Sir Philip was in settlement negotiations with the Home Office.  As part of the negotiations he sought a guarantee that in the event that there were any further adverse media briefings, the Home Office would make a public statement in support of him.  The failure to agree on this point and the fact that the settlement agreement contained a gagging clause, led Sir Philip to the decision not to settle his claim. 

Any settlement offer put forward by an employer should be carefully considered with the benefit of legal advice.  Even if an employee is successful in their claim for constructive dismissal, there are various grounds upon which the Tribunal may reduce the compensation it would otherwise have awarded.