Mr. Brodie Clark, the former chief of the UK Border Agency, has indicated that he intends to lodge a claim in the employment tribunal for constructive dismissal. His statement, released via the FDA Union, sounded as if it had been intentionally dipped in TCP to sting the emergent wounds of the Home Secretary.

In his claim Mr Clark will no doubt say that the acerbic comments made by Theresa May in the House of Commons on 7 November 2011 amounted to a fundamental breach of contract by his employer (the UK Border Agency is an executive agency of the Home Office), and that he resigned in response to that breach. Mr Clark’s statement specifically referred to his employer having disregarded his right to reply “in favour of political convenience", and he denied May's claim that he had improperly relaxed passport checks in order to manage growing airport queues. Mr Clark will have been advised to resign promptly to negate any argument that he has waived any breach, and chosen to affirm the contract.

Tribunal face-off?

Mr Clark may be asked to give evidence to the Home Affairs Committee, and his evidence may prove to be an interesting warm-up to a dramatic employment tribunal face-off; with Mrs. Theresa May (possibly giving evidence in person); the Home Office, and the treasury solicitors in one corner, and Mr Clark, his Union and which ever firm of solicitors he, or his Union, instruct in the other. His legal team will be carrying out a careful analysis of the words that Mrs. May used in Parliament and the Home Affairs Committee about Mr Clark, and a full review of publically available official reports.

Remuneration

The Home Secretary’s comments coincided with the publication of a Home Affairs Committee report into the work of the UK Border Agency (for the period April - July 2011), which included a table listing Mr Clark’s salary as £130,000-£135,000 per annum, with a bonus range of £5,000 - £10,000. Mr Clark will be under a duty to mitigate his loss.

Mediation?

If Mr Clark does issue a claim for constructive dismissal then he may have to wait many months before he sees the inside of an employment tribunal, as the tribunal service is bursting at the seams.

Employment lawyers will watch with interest to see whether the Government suggests mediation or enlisting ACAS, as a means of trying and resolve this dispute - the processes which have been superciliously endorsed by the coalition as cheaper alternatives to employment tribunals - or if the Government will put its mediation rhetoric to one side and rigorously defend any claim(s) from Mr Clark.

Philip Henson

Partner and Head of Employment Law - Bargate Murray