Junior civil servants who did not want to attend lockdown-breaching parties held at 10 Downing Street risked being forced to take legal action and put their careers in jeopardy, a senior employment lawyer has said.
The law expects people to stand up for themselves, experts have said, with employees largely expected to comply with their bosses. Whistleblowing legislation is rarely used because people are worried about repercussions.
“You’re going to struggle as an employee to effectively have any protection against doing what your boss asks you to do unless it is unpleasant, discriminatory or illegal,” said Kathryn Evans, a partner and the head of employment law at Trethowans Solicitors.
“But even if there is a legal breach, as in the case of these parties, the employee needs to decide whether to refuse and risk damaging their relationship with their boss. If they fear this might happen, they have no choice but to bring legal proceedings, which means being prepared to stand up and be counted – and accept that their relationship with their boss is probably at an end.”
Philip Landau, a partner at Landau Law, agreed. “Deferring to their boss’s interpretation of the rules – even though those bosses wrote the rules – is not a plausible and credible defence.
“If your boss puts you in the position where you feel you need to attend a party or lose their favour, there is actually no elegant or subtle way out of it,” he said. “If you feel exposed in this way, you may need to lodge a grievance to protect your position and if this doesn’t resolve matters, bring a case for constructive dismissal. This does mean resigning from your position, however.”
Rustom Tata, a partner and chair at law firm DMH Stallard, said the “law expects people to be able to stand up for themselves. That’s really tough on employees but the situation here is whether they broke the law or they didn’t. Whether you knew it was the law or why you broke it is irrelevant.”
But, said Tata, one of the general principles of employment law is that everybody should be subjected to an appropriate penalty. This, he pointed out, is said not to have happened in the case of the lockdown parties, where women and Downing Street staffers on low salaries have reportedly been disproportionately hit by fines.
“Given that no police interviews took place and this all rested on questionnaires, if somebody junior is receiving a fixed-penalty notice for being honest about what they did, compared to somebody senior to them who doesn’t get fined, that isn’t fair,” said Tata.
The question then is what the junior employee can do about it. “This is where it becomes very hard,” said Tata. “The junior employee doesn’t know who they’ve got beef with: is it their boss, who didn’t fill the form out honestly, or is it with the police for selective prosecution?”
But Dave Penman, the general secretary of the FDA, the trade union representing professionals and managers in public service, said junior civil servants may have attended the parties through choice – and senior civil servants may have been fined.
“Clearly this is a unique environment where a relatively junior civil servant could be invited to something by some of the most senior people in the country but let’s not forget, there were civil servants who chose not to attend these parties,” he said.
“We also don’t know who has been fined,” he added. “Junior civil servants might think they’re the only ones but because there’s no obligation to report it if you’ve received a fine, we don’t know who actually has.”