By Andrew Knorpel, Partner and Head of Employment.
You’re fed up with your FBI director. He just won’t do what you ask him and he could well be stirring up a Russian problem for you. So, with a cheery “You are hereby terminated”, President Trump ended James Comey’s employment, albeit that Mr Comey was informed of his dismissal by being handed a note whilst speaking to his staff ahead of an FBI recruitment event.
The letter of dismissal in somewhat Arnie-esque terms enclosed copy letters from both the attorney-general and deputy attorney-general in which Mr Comey was accused of having made “serious mistakes” in connection with the investigation of Hillary Clinton’s emails in the run-up to the presidential election (which of course benefitted the now-President).
However, in his first post-termination interview, President Trump made it clear that he had already decided to fire Mr Comey, “regardless of recommendation”. That was a sham(e) then.
The President then tweeted that Mr Comey had “lost the confidence of almost everyone in Washington” … just around the same time as Mr Comey’s successor told the Senate that “the vast majority of employees enjoyed a deep and positive connection to Director Comey”.
In his interview, President Trump had also called Mr Comey a “showboat” and “grandstander”. Mr Comey was down (terminated even), but the presidential boot just kept on kicking a man who he had previously described as “more famous than me” (in what seemed a compliment at the time for having acted in a way which may well have scuppered Mrs Clinton’s presidential hopes). Mr Comey subsequently testified to a Senate panel that he felt “mildly nauseous” to think he might have swayed the election and perhaps that was the nail in his FBI coffin as far as the President was concerned.
Back in the UK, every employee with unfair dismissal rights has the right to be informed in writing of the reason for their dismissal on request. Employees dismissed while pregnant or during statutory maternity or adoption leave have the right to be given written reasons for dismissal without having to request them, regardless of their length of service.
If no statement of written reasons is provided or the employee believes that the reasons provided “are inadequate or untrue”, then they can bring a claim with a potential remedy of two weeks’ pay (capped presently at £489 per week). Of course, if an employee can show that the reasons given are untrue, then they’re probably also on course for a successful unfair dismissal claim too.
However, if an employer chooses to follow a fair procedure, it’s likely that they will also be able to establish and maintain a fair reason for dismissal … provided they keep the CEO well away from Twitter.