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‘Cummings and goings’: Downing Street’s novel approach to employment law

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If it is not one thing, then it is most certainly another for Dominic Cummings right now. No sooner has he begun to put the whole 'Barnard Castle’ debacle behind him than the newspaper headlines are filled with less than flattering stories about last year’s dismissal of former media adviser, Sonia Khan. So what’s this all about?

A police escort…

As you read the latest articles, you’ll probably begin to remember the whole saga. In August 2019, Ms. Khan - who was a member of Sajid Javid’s inner circle and one of his ‘special advisers’ - was unceremoniously removed from her role. 

If the newspaper coverage is to be believed, Mr. Cummings formed the view that Ms. Khan had been less than forthcoming about the nature and extent of her ongoing connections with Sajid Javid's predecessor, Philip Hammond. Acting as judge, jury and executioner, Mr. Cummings is alleged to have instantly dismissed Ms. Khan and then sensitively arranged to have her marched out of Downing Street by armed police!

Now I am certainly not going to pretend to understand everything that goes on within the corridors of power. But what is most certainly clear to any employment lawyer is that government departments are not above the law.  With this in mind, if there is even a grain of truth in the newspaper stories we’ve all been reading, then on the face of it, there are most certainly some serious questions to be asked about the manner in which this dismissal was handled.

What about a bit of ‘due process’? 

Even if Ms. Khan committed an act of misconduct warranting disciplinary action (which may well be contested by her lawyers), any HR practitioner would know that the Cabinet Office should have gone through something close to a ‘normal’ disciplinary procedure before dismissing her. As a bare minimum, one might have expected Ms. Khan to be:

  • formally suspended, pending a full and proper investigation;
  • provided with both a clear statement of the case against her and copies of any evidence on which the ‘prosecution case’ relies; 
  • invited, in writing, to a properly constituted disciplinary hearing; and
  • permitted to be accompanied to that hearing by either a work colleague or trade union representative (or, given the circumstances, possibly even a lawyer).

This is all just for starters. Ms. Khan could also reasonably have expected the disciplinary hearing to be chaired by an independent decision-maker, who had not otherwise been involved in the investigation thus far (which arguably would have excluded Mr. Cummings from the role). Was all this ‘due process’ simply ignored?

Where are we now?

Perhaps unsurprisingly, we now find ourselves in a situation where Ms. Khan has lodged Employment Tribunal proceedings for unfair dismissal. More interestingly, however, she has also (a) brought a claim for sex discrimination and (b) directed that claim at Mr. Cummings personally.

Employment Tribunal claims are almost always brought against the employer alone. Unfair dismissal claims can only be brought against employers; and whilst discrimination claims can be brought against individuals as well, often this is entirely unnecessary. After all, it’s almost always the employer who has the deeper pockets and the financial wherewithal to meet the claim. However, where an individual is very particularly responsible for the alleged discriminatory acts, bringing claims against that individual can be very important from a tactical point of view.

‘One for all and all for one’

One wonders whether, in this case, the decision to target Mr. Cummings personally was an especially tactical one. Was it aimed at causing maximum disruption and possibly even designed to drive a wedge between Mr. Cummings and the Cabinet Office more generally? After all, in cases such as these, employers have a decision to make.  Do they stand four-square behind the Cummings figure and back him to the hilt? Or do they run a ‘cut-throat defence’ aimed at blaming it all on the errant line manager in an attempt to avoid liability for themselves? Such arguments are possible, although admittedly difficult to run.  

Interestingly, the most recent newspaper coverage of the Khan claim suggests that far from hanging Mr. Cummings out to dry, the government is attempting to shield him from liability altogether. Lawyers for the Cabinet Office unsuccessfully tried to convince an Employment Tribunal that the claim against Mr. Cummings personally should effectively be struck out, with the case proceeding against the Cabinet Office only. A recent article in The Guardian cites a government source who claims that their approach to this case reflects ‘standard government practice’. 

But is it right that the public purse should bear the financial brunt of claims such as these?  

It is almost inevitable that Ms. Khan will be seeking considerable financial compensation. The mean value of claims of this nature is disappointingly small; something in the region of £10,000-£15,000.  However, given the characteristics of this particular case, it is hard to imagine that Khan would be claiming anything less than six figures, once she has factored in her financial losses and an appropriate level of compensation for ‘injury to feelings’.  In normal circumstances, Mr. Cummings could find himself jointly and severally liable for the compensation payable in relation to Ms. Khan’s discrimination claim, should it prove successful. So why were government lawyers so keen to make an application that would have resulted in all the financial risk falling on the shoulders of ‘Joe Taxpayer’ alone?

What now?

The Khan case has now been listed for a 5-day hearing at the Central London Employment Tribunal in December. Given that Mr. Cummings remains a respondent to the claim, it seems inevitable that he will have to give evidence in person and be cross-examined on his actions. Will other high-profile personalities (up to and including the Prime Minister himself) also need to be called as witnesses? 

Or will the prospect of further negative publicity persuade the government to take steps to settle this matter before it goes to ‘court’? The voyeur in me hopes not!

How about some HR training?

Of course, one wonders whether all this trouble could have been avoided if Mr. Cummings and other members of Boris Johnson’s top team had been provided with some basic training in the art of human resource management. It occurs to me that Priti Patel might benefit from this as well. Perhaps I’ll send them the Zoom invite and see if we can set something up!

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