The Brodie Clark Resignation



The Head of the UK Border Force, Mr Brodie Clark, resigned on Tuesday, reportedly in reaction to comments by the Home Secretary that blamed him for a relaxation of biometric and anti-terrorism checks over the summer.  Mr Clark had been suspended a few days previously over the matter.

He disputes any wrongdoing and has stated that Ms May’s comments were misleading and had amounted to a campaign of public vilification against him, such that he would not receive a fair hearing. One Home Office source called him a “rogue civil servant”.    According to reports in the media Home Office lawyers are telling Ms May that he has a good case and is likely to win. In his resignation statement he said

“I am anxious to take part in any independent inquiry into matters relating to UK Border Agency but my position at UKBA had been made untenable because of the statements made in the House of Commons by the Home Secretary Theresa May.

“Those statements are wrong and were made without the benefit of hearing my response to formal allegations. With the Home Secretary announcing and repeating her view that I am at fault, I cannot see how any process conducted by the Home Office or under its auspices, can be fair and balanced.

He therefore resigned and said he intends to claim constructive dismissal. Constructive Dismissal is a claim for breach of contract, specifically wrongful dismissal (it may also be an unfair dismissal, but that is a separate claim). More specifically it is defined in the Employment Rights Act 1996 at s.95(1) (c) as an employee resigning

“in circumstances such that he is entitled to terminate [the contract of employment] without notice by reason of the Employer’s conduct”.

 The employee effectively is saying that the employer has fundamentally broken the terms of the employment contract and is accepting that breach by resigning in response.  That could either be a written term (i.e failure to pay salary for instance) or an implied term, of which there are several.  Mr Clark was suspended, no doubt whilst an investigation into his alleged conduct was carried out, but because most disciplinary procedures are not contractually binding, he probably can’t rely on breach of it and suspension isn’t of itself a disciplinary measure anyway.

He is probably relying on the implied term of mutual trust and confidence in claiming the employment contract has been repudiated. That is an unwritten term that exists in every employment contract and where an employer, without reasonable and proper cause, acts in “a manner calculated or likely to destroy or seriously damage the relationship of trust and confidence between employer and employee” such as treating the employee in a degrading or demoralising way, or bullying or harassing an employee (especially in public) that may well constitute a fundamental breach of the term.

Because Mr Clark was on a fixed term contract, he will probably claim for the unexpired portion of salary and benefits from the date of the repudiation of his resignation to the date the contract would have expired.  How much he gets will therefore depend on how many months his contract had to run.  At a reported salary of £130,000 per annum it could be a fairly large sum of money.  As a breach of contract claim and probably worth more than £25,000 (the upper limit for breach of contract claims in the ET) he will bring it in the High Court.  He may also bring a claim for unfair dismissal, but that would be limited to the upper cap on compensation of £68,400 plus a Basic Award based on age and length of service.

The burden of proof in a wrongful dismissal claim is on the Claimant, Mr Clark.  If he can show that he resigned in response to the alleged breach by the government (and that there wasn’t some other, as yet unknown, fact in the background) then his looks like a good claim.

Politicians of both main parties have got themselves mixed up in messy employment disputes in the past.  Most recently Ed Balls waded in to the Baby P tragedy at Haringay Council by sacking Sharon Shoesmith, exposing the tax payer to a potentially very significant compensation award..  Before that, in 1995, Michael Howard sacked the then governor of the Prison Service Derek Lewis for allegedly failing to meet targets on prison escapes. He sued and won a substantial award.  Click here for an interesting analysis on the Whitehall Watch blog drawing a comparison between the May and Howard situations.

 Plus ça change, plus c’est la même chose? Perhaps politicians should learn not to shoot from the lip in these situations in future?

Michael Scutt, Employment Solicitor 

Employment solicitor with Crane and Staples, Welwyn Garden City, Hertfordshire. Blogger & writer. I like cycling, cricket, football and history.