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Border-Line Constructive Dismissal?

Mark Higgins – Employment Law Partner

Being bruised by critical remarks made about you by your boss may well make you feel like walking out.

When your boss is the Home Secretary and her remarks are broadcast across the land, your decision may well be justified.

However, in the vast majority of cases, resignation as a knee-jerk reaction to your employers unreasonable conduct is not likely to provide a good basis for claiming constructive unfair dismissal.

The law has for a long time been clear that an employee should not normally abandon ship without having made some attempt to resolve matters internally.

In Brodie Clarks case, the UK Border Agency is likely to argue that as his suspension was justified to enable an investigation to be carried out and that as he would have had an opportunity to challenge any allegations laid against him, he ought to have waited.

To succeed in his claim of constructive dismissal, therefore, Clark will need to prove that Theresa Mays comments to the Parliamentary Committee were sufficiently prejudicial and damning of him that a fair hearing was rendered impossible and that the trust and confidence he previously had in his employers is gone. Even so, a technical win in tribunal will not clear Clark’s name unless the forthcoming investigation concludes that he did nothing wrong.