Employment Advice (For Business)

What does constructive dismissal and whistleblowing mean?

On 20 April, Sir Philip Rutnam, former Permanent Secretary of the Home Office, announced that he had issued a claim in the Employment Tribunal against his former boss, Home Secretary Priti Patel.

22 Apr 2020

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This was no surprise – in a statement made at the time of Sir Philip’s resignation in February, he claimed that he had confronted Ms Patel over her behaviour, citing a culture of fear in the department. Sir Philip indicated that he had been constructively dismissed. However according to his Union, Sir Philip’s case includes not only a claim for unfair constructive dismissal, but also one of whistleblowing.

What does this mean? In order to succeed in a claim for unfair constructive dismissal, a claimant must show that they have been forced to leave their job, against their will, because of their employer’s behaviour. The conduct must be serious. There could be a series of events, or one serious incident.

In a whistleblowing case, a claimant will have to persuade the Employment Tribunal that there were treated unfairly or lost their job because they had reported a wrongdoing. Lodging a personal grievance does not count as blowing the whistle – in Sir Philip’s case it was the alleged treatment of colleagues, not his own treatment which, he says, led to him losing his job when he reported it.

Why bring both claims? The main difference is that there is a statutory cap on the amount of damages that the Employment Tribunal can award in a claim for unfair constructive dismissal. In relation to whistleblowing claims, there is no limit on damages.

M&P Commentary

Esther Marshall, an Associate Solicitor in our Dispute Resolution team, said:

“Claims for unfair constructive dismissal are notoriously complex. To succeed in such a claim, you need to prove:

Your employer committed a very serious breach of the employment contract;
You resigned in response to that breach and not for any other reason;
You did not wait too long before resigning. Taking legal advice before taking the drastic step of resignation will be key to any claim. Similarly, prior to bringing a whistleblowing claim, you will need to make sure that the report you intend to rely upon does bring you within the protection of the law. As with all employment claims, there are strict time limits for starting proceedings – waste no time in seeking expert legal advice if you feel that you have a claim. You can contact our Dispute Resolution team on 01708 784000.”