The Guardian reports (10 November) that Home Secretary Theresa May has been told by Government lawyers that the head of the Borders Agency, Brodie Clark, is highly likely to win his claim of constructive dismissal followingher very public intemperate outbursts about his alleged handling of passport checks over the summer and apparent background briefings at her behest that he was a “rogue” civil servant. She gave him no right to defend himself although he had been suspended and she pre-empted the outcome of any investigation and hearing into his conduct. She may not have been his immediate boss, but was part of his senior management line and so this breach of both civil service procedure and good practice, coupled with her damning comments about him, put him in a strong position to claims around £135,000 of public money in compensation.
It is far from reassuring to know that someone as closely connected with the workings of government so readily dispenses with (or perhaps simply does not recognise to begin with) the most basic premises of natural justice – that someone alleged to have done something wrong should have a chance to defend themselves through some sort of fair process and be presumed innocent until found guilty (even under the lesser test of “reasonable belief on the balance of probabilities” applied to employers dealing with their staff as opposed to “proof beyond reasonable doubt” required for court cases). Yet here we have May, who does appears on most levels to be a rather "rogue" operator herself, supported by the Prime Minister in her frankly dysfunctional, blame-shifting behaviour.
But at least Brodie Clarke will be able to defend himself by taking a claim to an employment tribunal. Unlike a growing number of British workers, he had employment protection against unfair treatment by his employer, a right that used to kick in after twelve months service.
Lib Dem Employment Minister, Ed Davey, has now decided to increase this qualifying period to 24 months – so, if you or anyone else has less than two years service, your employer will shortly be able to treat you just as badly or even worse than Brodie Clark experienced at the hands of Theresa May, and you will have absolutely no redress.
Likewise, while ruling out supporting recent proposals by David Cameron’s adviser (and also funder and holder of various seven-figure public contracts), Adrian Beecroft to allow employers to dismiss staff without any explanation by giving them a payment equivalent to state redundancy pay (capped at less than £600 for each year of service), Deputy Prime Minister Nick Clegg has repeated his own wish to introduce a right for employers to have “protected conversations” with staff that cannot be used in any subsequent tribunal proceedings.
Such a right already exists where there is a dispute such as a performance management, disciplinary or grievance case ongoing – employers can have a “without prejudice” discussion, usually linked to agreeing some sort of compromise payment with the member of staff. However, Clegg wants this right to exist even where there is no active dispute. Basically, he wants an employer to have the right to talk to an employee off the record, regardless of the issue. So, your boss could say to you “I think you are useless, you should leave your job as fast as possible or I will make your life hell” and, if he or she has declared it a protected conversation, you could do nothing about it even after two years’ service.
Clegg’s words make clear that he is pretty well signed up to the belief that employers should have much stronger powers to discipline and sack staff than even Margaret Thatcher allowed; he forgets that 85% of workers are employees and, although there is a striking blindness among many that such arbitrary powers won’t affect them, I have come across all too many people from all walks of life who have been astonished when it has been their turn to be on the receiving end of pernicious behaviour by their employer.
Deregulation did nothing for the banking industry; why should anyone think for a moment that it will help the employment relationship which, at its deregulated core is still founded on the centuries old laws of Master and Servant?
Clegg and his allies are proposing nothing less than a bullies’ charter.
Theresa May must be licking her lips.
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