I have to admit I laughed out loud when I saw this headline in the Guardian
Adviser sacked by Cummings may have case for unfair dismissal – expert
Oh do you think so? Could it be that calling someone in for a meeting, sacking them on the spot and them having them escorted off the premises by an armed police officer does not comply with Acas code on discipline and grievance? Whoever would have thought it?
I laughed again when I saw who the expert was. I was frankly expecting that some marketing department in a law firm had put forward a random associate to try to get some publicity off the back of all the Dominic Cummings news – but no. It turns out that expert is John Bowers QC.
For employment lawyers of my generation, John Bowers has near legendary status. A QC since 1998 – back when there were not many specialist employment law silks – he is the author of more than a dozen books and the Principal of Brasenose College in Oxford. He is not sending his opinion out in a press release in order to boost his profile – he must have been approached directly for his opinion. So due credit to Kate Proctor of the Guardian. When she asks for an expert view, she doesn’t mess about.
But the dismissal of Sonia Kahn obviously unfair and we don’t really need a leading QC to tell us that. Assuming that Ms Kahn has two years’ service (she probably does, I doubt that her move from the regular civil service to a ministerial adviser’s role in 2018 would have broken her continuity of employment) there is no way you could sensibly argue that the process adopted was reasonable in the circumstances. The point is that this fact will be a matter of supreme indifference to Dominic Cummings.
As John Bowers says in the article, a Tribunal judge would certainly hate the way in which the employer has behaved in this case. But I would be astonished if this case got anywhere near that stage. There will be a settlement agreement. Compensation will be agreed and both sides will move on.
The biggest limitation on our law of unfair dismissal is that it doesn’t even prevent employers from dismissing employees unfairly. Employers can basically do whatever they want and then worry about the costs later. Some employers will regard unfair dismissal compensation – limited as it is – as a relatively small price to pay for the ability to fire at will. Given the sums of money that Dominic Cummings is currently playing with I doubt he will break into a cold sweat when he hears how much the dismissal of a special adviser will cost the Government.
Of course an employee does not have to accept a settlement. If you are unfairly dismissed you are well within your rights to plough on through to the Tribunal in order to get a public finding in your favour. Any compensation you are awarded will then not be subject to the confidentiality clause that would inevitably be included in any settlement agreement.
But why would you want to do that? Taking your case through to a Tribunal can be a bruising experience and the outcome is never certain. It may seem obvious that Ms Kahn’s dismissal was unfair, but that does not mean that substantial compensation would be awarded. If the Tribunal found that Dominic Cumming’s accusations about her conduct were true then her compensation would be reduced to reflect her ‘contributory conduct’. Even if the Tribunal believed she was innocent there could still be a substantial reduction in the award if conducting a fair investigation and holding a proper disciplinary hearing with a right to be accompanied would have made no difference to the decision to dismiss. An unfair dismissal claim is a speculative endeavour.
If you are a skilled professional with decent employment prospects then the rational response to being dismissed unfairly is to reach an agreement with your former employer and move on. Ideally the agreement would include terms that would cover how the ending of your employment would be explained to future employers that would not deter them from employing you.
All this means that there are some employers who can afford to ‘buy-out’ an employee’s unfair dismissal claim, while there are others for whom the prospect of being sued for unfair dismissal is an existential threat. Is that a problem? Do we need to make larger and more affluent employers actually comply with fair employment standards or is it sufficient that they are forced to compensate the employees that they treat unfairly?
If your answer is the former, then the solution would be to have a much more interventionist system where employers are actually prevented from dismissing without good cause or following set procedures. In the Netherlands, for example, an employer often has to get permission from the court before an employee is dismissed. I don’t know how well this works in practice. I suspect that the parties often agree a termination my mutual consent rather than go through the legal process. In any event such radical reforms are simply not on the agenda for the UK – at least not while Mr Cummings is in charge.