How should HR react when confronted by a case such as that thrown up by the
mysterious ‘resignation’ of Department of Transport media adviser Martin
Sixsmith? Philip Boucher finds there are no easy answers
Did he jump or was he pushed? A question that often surrounds a political
fall from grace. But in the case of the Martin Sixsmith/Stephen Byers affair it
is now more relevant to ask whether Sixsmith ‘fell’ at all?
Thanks to a notice by the Department of Transport, Local Government and the
Regions (DTLR) on 8 May, it has become clear that Sixsmith, who supposedly
resigned as director of communications at the Department of Transport over the
Jo Moore e-mail affair, did no such thing.
This runs contrary to a statement made by Byers to the House of Commons in
February, entitled Resignation of Martin Sixsmith, where Byers repeatedly
claimed Sixsmith agreed to leave his job.
Regardless of the political consequences this has had (Mr Byers resigned
from the post of Transport Secretary on 28 May), this is a clear case of bad
employment practice. Sixsmith, who had almost two years left on a £100,000 a
year contract, has been awarded a £180,000 settlement by the Government. He is
thought to have threatened to reveal details of the affair at an employment
tribunal and the sum appears to represent double the amount he had hoped for.
Constructive dismissal
Naturally, this would have put the Government in a sticky situation. Not
least because Sixsmith may have had grounds for constructive dismissal. He
could also have argued that his case came under the Public Interest Disclosure
Act, designed to protect whistleblowers.
What is clear, is that in HR terms, the DTLR failed to follow best practice.
It didn’t get Sixsmith to state his intentions in a letter to the department.
Legally, he would have had to make an unequivocal, clear and certain statement
that he was no longer willing to work with his employer. As he had been at home
on full pay since 15 February, this was not the case.
The date of the apparent resignation was also never clarified. Indeed, a
statement made on 7 May by the DTLR stated: "The department accepts that
Martin Sixsmith has remained in its employment since his contract began on 19
November 2001. He did not resign on 15 February 2002. It regrets that, while
acting in good faith, it announced he had resigned on what turned out to be an
incorrect understanding of earlier discussions that day."
Such a climbdown is far from exceptional in political circles, but in
employee relations terms it represents a major breakdown in communications.
Sarah Linton, counsel and head of UK employment practice at law firm Bryan
Cave, explains: "To be legally binding, a resignation has to state the
exact date that it takes effect. You are also supposed to give notice – this is
likely to be at least the statutory minimum notice of one week. You have to
make your intention to leave employment absolutely clear."
The difficulty is that situations like the Sixsmith affair are unavoidably
acrimonious and often hurl HR into a crossfire of warring factions, regardless
of how carefully it treads. In 99 per cent of resignation cases this scenario
will not arise, but when it does HR has to be extremely careful to say the
right thing at all times. "You need to act very carefully," says
Linton. "If an employer in any way leans on an employee to resign, the
company is open to a claim of constructive or unfair dismissal."
Off-the-cuff remark
It is a trap Byers may well have fallen into, exacerbating an already
complex situation. Case law shows many instances where employees have resigned
under dubious circumstances and frequently it is in response to a line
manager’s outburst. While there is little that can be done to control a
manager’s tongue in a heated situation, HR is usually left to try and repair
the damage.
In the case of Futty v D&D Brekkes Ltd, 1974, IRLR 130, a resignation
took place as a result of an off-the-cuff remark by a foreman who told a man
that if he didn’t like his job he could leave. The employee took this as an
invitation to hand in his resignation and promptly did so.
The management at D&D Brekkes was left in an indefensible position
because of the actions of a line manager and subsequently had to try and repair
the damage. Inevitably, this job fell in the lap of HR.
Palmanor Ltd v Cedron, EAT 1978 IRLR 303, provides another example. Mr
Cedron was employed as a barman at a nightclub. During the course of his duties
he had a row with his employers and a manager swore at him. Cedron pulled the
manager up over his language and was told that if he did not like the words
being used he could go. He took this as an invitation to leave.
An industrial tribunal took the view that Cedron was entitled to treat
himself as constructively dismissed, within the meaning of paragraph 5 (2) of
Schedule 1 to the Trade Union and Labour Relations Act 1974, and that the
dismissal was unfair. Senior solicitor at Manches, Jane Brown, says:
"Employers have got to be aware that often a line manager will say
something in the heat of the moment that an employee can construe as
dismissal."
For HR, the difficulty lies in finding a way out of such messes. But there
are a number of measures that can be taken to limit the effects. "The
first step is to identify what you have on your hands and the best way to
clarify that is simply to get in touch with the employee to discuss what
happened," says Sarah Lamont, partner at Bevan Ashford.
"To claim constructive dismissal an employee has to resign in clear
response to a breach. If it is not mentioned in the resignation letter or
stated at the time of resignation, the EAT will ask why."
This is not to say you can stop unfair dismissal claims through a cunning
manipulation of the law. But, it does provide a breathing space to tidy the
situation up and maybe even ask the individual to return. Lead adviser on
public policy at the CIPD, Diane Sinclair, says: "In circumstances where
someone leaves suddenly, it would be wise for HR to conduct an exit interview
if possible. If there is a dispute, HR has to work with both parties to resolve
the issue."
An exit interview also allows HR to find out the facts as the employee sees
them. This may prove invaluable if legal action follows. Sinclair says:
"In circumstances where the situation had gone too far for HR to step in
and bring about a quick and sensible solution, the HR department needs to start
investigating the matter as soon as possible – if there is a claim of
constructive dismissal, the organisation will have the information it needs to
defend itself."
The key is to act quickly. However, if a resignation is formally accepted
the situation becomes much more definite, and subsequently, any claims of
constructive dismissal become more difficult to avert. While a ‘reasonable’
period is permitted for a retraction, there is no set time. If it is not done
promptly, there may be disruption to the employee’s continuity of employment.
Internal grievance structure
Another course of action is to pre-empt potential difficulties by training
managers in the basic principles of employment law. Even though many of the
issues surrounding employment law and integrity appeal to basic common sense,
this can help managers to avoid comments that later create difficulty.
From a grievance point of view, HR also has to understand the employee’s
work situation as thoroughly as possible. Head of HR at Axa Sunlife Insurance,
Andrea Cartwright, says: "In situations like this, there is nearly always
some kind of history or something else in the background."
Analysing this helps HR to arrive at a sensible conclusion about what has
happened from a personal point of view. It may also take into account
organisational issues that may have exacerbated the situation. As HR has to
answer for the organisation as soon as a manager says something out of place,
it needs to find out if the internal grievance structure is in any way to
blame.
Speaking of the Sixsmith case, Cartwright says: "The flaws in the
system and the obvious lack of communication would have to be identified and
made clear to others in the team and the organisation. In cases like this where
the issue has to be dealt with in a very public manner, there is also a certain
amount of external public relations to consider."
The important thing is that the lessons learned are communicated to other
managers around the company so the same mistakes aren’t made again. Situations
like this can very quickly tumble into dispute. The exception is in cases where
a senior employee is under-performing or has been negligent. Here, it is often
the case that both sides choose resignation as a face-saving exercise where the
normal rules are usually ignored in favour of preserving a reputation. And it
is likely that Byers hoped Sixsmith would fall on his sword in this manner.
"In situations like this, a disciplinary process reflects badly on both
parties," says Caroline Knoblet, partner at Hammond Suddards Edge.
"One way of dealing with it is reaching an agreement where the individual
goes voluntarily, as resignation sounds far better than being sacked."
In return, the high-ranking employee receives a financial incentive coupled
with a blot-free CV. This enables both sides to part company without tarnishing
their business image and settles the whole affair without recourse to the
courts. The alternative, as Mr Byers has realised, is a far more damaging route
entirely.
How to act in the case of a sudden, acrimonious resignation
– Act quickly. Find out as much as
possible from both sides. Visit the employee at home if necessary. HR could
carry out an exit interview
– In a dispute, HR must work with both parties to investigate
what happened and reach a quick and sensible solution. See if either party will
retract what they have said. Case law allows a ‘reasonable’ period for this to
happen
– If an employer leans on an employee to resign in any way, the
company is open to claims of constructive or unfair dismissal
– Further, an employment tribunal can rule that if a manager in
the heat of the moment invites an employee to leave, that dismissal can later
be construed as a constructive dismissal and the claimant awarded damages
– If the employee wants to continue with the resignation they
need to give a written statement of their intent that is unequivocal and must
state the exact date that takes effect
– To claim constructive dismissal an employee has to resign in
clear response to a breach. If this is not mentioned in the resignation letter
or stated at the time of resignation the EAT will ask why
– The HR department must assertain the facts where an employee
claims constructive dismissal so the organisation will be able to defend
itself. It must analyse if there is some kind of history to the dispute and
whether any earlier complaint has been handled properly via the company’s
internal grievance procedures
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– See if either party will retract what they have said. Case
law allows a ‘reasonable’ period for this to happen, although there is no set
time
– Ensure that the lessons learnt are communicated to managers
so the company does not have to defend a similar case
