The former head of the UKBA, Brodie Clark, appeared before the Home Affairs Committee on 15 November to answer questions from MPs about the fiasco at the UK’s borders over the summer.
It followed Clark’s resignation on 8 November, on the grounds that his position had become untenable following the Home Secretary’s comments in Parliament placing the blame on Clark personally for the failure to properly carry out passport checks. Clark has since indicated his intention to bring constructive dismissal proceedings.
Certainly, the Home Secretary was not backwards in coming forwards when she addressed Parliament on 7 November, pointing the finger of blame at Clark for relaxing border controls without ministerial approval. As a result, she said the government would never know how many people had entered the country who should have been prevented from doing so. At the time those comments were made, Clark had been suspended from his post but no proper investigation into matters had been concluded.
In its handling of the Clark affair, this government seems determined not to learn from the mistakes made by the previous government. There are obvious comparisons to be drawn with the case of Sharon Shoesmith, former Director of Children’s Services at Haringey, who was removed from her post following the death of Baby P. In the aftermath, an investigation by OFSTED was highly critical of Shoesmith’s department, identifying a number of serious concerns in relation to the safeguarding of children and young people in Haringey.
On receipt of the OFSTED report, Ed Balls, then Children’s Secretary, directed Haringey council to removed Shoesmith from her post. She was duly summarily dismissed without being afforded any opportunity either to present her case or answer the serious allegations which had been made about her and her department.
Shoesmith subsequently brought judicial review proceedings in the High Court. At first instance she lost but on appeal the Court of Appeal upheld her claim. It held that she had been “summarily scapegoated” for the various failings and had been unlawfully removed from her post, putting her in line for a sizeable payout. Giving the leading judgment, Lord Justice Maurice Kay stressed the need for procedural fairness in these situations and made clear that “accountability” was not the same as “heads must roll”.
Brodie Clark refutes the Home Secretary’s accusations that he acted without ministerial approval. In the absence of a thorough investigation having been concluded it is impossible to say whether or not Clark is guilty of that which he has been accused. However, if at the conclusion of the internal investigation the UKBA decides that Clark had acted without approval his conduct may have justified his employer terminating his contract summarily, without notice. If so, the UKBA could seek to argue that by being in prior repudiatory breach, Clark is precluded from accepting his employer’s subsequent breach (by reference to the Home Secretary’s comments in Parliament) and he cannot therefore treat himself as being constructively dismissed.
This line of argument was tentatively suggested in RDF Media Group Plc v Clements  IRLR 207. However, the recent high profile broker team move case (Tulett Prebon Plc & Ors v BGC Brokers LP & Ors  EWHC 484), the High Court suggested that this was not good law in the context of an employment contract and that accordingly, if there is a breach of a contract by one party which entitles the other to terminate the contract but he does not do so, “then the contract both remains in being and may be terminated by the first party if the second party has himself committed a repudiatory breach of the contract”. The law in this area is not however settled and the point does remain open to be pursued by UKBA against.
Assuming that Clark overcame this hurdle the issue of compensation and damages will fall to be considered. In a constructive dismissal case, this will comprise a damages claim for breach of contract (usually) in the High Court (as the Employment Tribunal cannot award more that £25,000 damages for breach of contract) as well as possible claim for unfair dismissal in the Employment Tribunal.
As regards the amount of compensation that may be awarded to Clark for unfair dismissal, no doubt the UKBA will seek to argue that any compensation awarded to Clark should be reduced (if not eliminated) on the basis that even if due process was followed, with Clark given the opportunity to answer the allegations in the course of an internal inquiry, he would have been dismissed in any event if found to have relaxed border controls without approval.
In the High Court breach of contract claim, the UKBA will also seek to argue that Clark’s misconduct was such that it would have been justified in immediately dismissing him without notice had this misconduct been proven prior to his resignation and thus extinguish Clark’s claim for damages for breach of contract. However, even if these arguments were to succeed in the Employment Tribunal and the High Court, Clark would still be entitled to receive his salary and benefits for the period of time equivalent to the length of the investigation that would have taken place before a decision to dismiss would have been made. This could still be a claim that is significant in value given the complex nature of this factual dispute and the time that it will take a bureaucratic government organisation such as the UKBA, to fully investigate the situation and to hold appropriate internal hearings.
Of course if Clark escapes from the internal inquiry without blame and is successful in his constructive dismissal case, compensation and damages will be assessed in the usual way and like Shoesmith before him, Clark too could be in line for a substantial payout. He does appear to have a long and difficult case to pursue and it is does not appear that any settlement could easily be reached after such a public falling out between the Home Secretary and one of her most senior civil servants. All the more reason why the Home Secretary’s very public dressing down of a loyal and highly regarded public servant was so undesirable, whatever the rights and wrongs of the situation.
Howard Hymanson, Head of Employment at Harbottle & Lewis LLP