As the news emerged of Donald Trump’s decision to dismiss the head of the FBI, James Comey, I found myself asking the question: given Mr Comey has over two years qualifying service would he have a case for unfair dismissal had he been dismissed in the UK?
The main issue for Mr Comey would be whether, as director of the FBI, he qualifies as an employee. This is an issue which Police officers in the UK face when pursuing unfair dismissal claims as they have unique status and are viewed as Office Holders rather than employees and cannot raise unfair dismissal claims (save for exceptional circumstances where whistleblowing/protected disclosures are involved).
The employment status of an individual is important for a number of reasons. In particular, the rights and obligations of an individual will depend on whether or not they are designated as an employee, worker, or self-employed.
Under Section 230(1) of the Employment Rights Act 1996, an employee is defined as an individual who has entered into a work under (or where the employment has ceased, worked under) a contract of employment.
Generally speaking there are three characteristics which are considered when determining whether an individual qualifies as an employee. These are:
- Obligation to provide personal service
- Mutuality of obligation
- Control
We shall continue as though Mr Comey has convinced the Employment Tribunal that he qualifies as an ‘employee’ and therefore able to raise a claim for unfair dismissal. In order for a dismissal to be fair, an employer must have a potentially fair reason for the dismissal, and, the employer must have acted reasonably in treating that reason as sufficient to justify dismissing the employee.
From what we have been told the reason for the dismissal appears to be his handling of the Hilary Clinton email scandal investigation. If this is the reason Mr Trump is relying on then it would more than likely be considered to be a ‘capability’ dismissal rather than a misconduct dismissal.
Capability should be assessed by reference to an employee’s “skill, aptitude, health or any other physical or mental quality” (section 98(3)(a), Employment Rights Act 1996). The capability must relate to the work that the employee was employed to do (section 98(2)(a), Employment Rights Act 1996).
Whether the dismissal is deemed fair will depend on the reasonableness of the employer’s decision in the particular circumstances and the procedure followed.
It is no secret that the FBI is investigating Mr Trump’s links with Russia during his Presidential campaign. The likelihood is that Mr Comey would argue that this was the real reason for his dismissal. If a Tribunal was convinced that this is the case then it is likely the decision to dismiss would be deemed unreasonable and Mr Comey could be successful in an unfair dismissal claim.
At Jackson Boyd we deal with unfair dismissal cases on a daily basis. If you require any advice or assistance please contact us online by clicking here or speak to a member of our specialist team on 0333 222 1855.
