Civil servants union launches legal challenge over decision by PM that Home Secretary did not breach ministerial code in ‘bullying’ case

The First Division Association has launched a legal challenge to the Prime Minister’s decision that the Home Secretary did not breach the Ministerial Code.

Boris Johnson made his decision followed an investigation by Sir Alex Allan, who was asked by the Prime Minister to advise about whether facts established by the Cabinet Office in relation to the conduct of Priti Patel showed adherence to the Code.

Mr Allan advised that the Home Secretary had “not consistently met the high standards required by the Ministerial Code of treating her civil servants with consideration and respect. Her approach on occasions has amounted to behaviour that can be described as bullying in terms of the impact felt by individuals”.

He added that, to that extent, her behaviour had been in breach of the Ministerial Code, “even if unintentionally”.

Sir Alex, who was later to resign after the Prime Minister’s decision, added however that this conclusion needed to be seen in context. “There is no evidence that she was aware of the impact of her behaviour, and no feedback was given to her at the time. The high pressure and demands of the role, in the Home Office, coupled with the need for more supportive leadership from top of the department has clearly been a contributory factor. In particular, I note the finding of different and more positive behaviour since these issues were raised with her.”

FDA General Secretary Dave Penman said its legal challenge was “essentially that the Prime Minister’s decision was irrational given the obligations of the Code, and indeed his own words in its foreword that ‘there will be no bullying and no harassment’.”

Penman wrote that it was entirely a matter for the Prime Minister to consider the factors he felt appropriate in determining any sanction following a breach, and that was not a matter on which the union sought to intervene.

“Our contention, however, is that given the clear obligations under the Ministerial Code in relation to bullying and harassment, the Prime Minister’s decision effectively concludes that the Home Secretary did not bully civil servants as she states this was not her intent.”

On this issue Penman cited the Home Office’s own definition of bullying:

“Bullying is offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power which undermines, humiliates, denigrates or injures the recipient. Bullying can be obvious and direct or more subtle and indirect. Anyone can be a victim. Bullying is not about whether the perpetrator of the acts intended them or not, but about the impact on the recipient and how it makes them feel.”

Penman said the definition of bullying used in the Prime Minister’s own department, the Cabinet Office, was very similar to the Home Office definition.

He added that, “having examined the procedures in dozens of departments, employers and the ACAS guidance”, the FDA could not find an example where intent was factored in this way.

“The result, if left unchallenged, is that ministers would be held to a different standard of conduct than civil servants,” he said.

“Whether this was the intent of the Prime Minister or not, this is the consequence of his decision. In an attempt to avoid litigation, we offered not to pursue our judicial review if the Prime Minister amended the Ministerial Code to include a definition of bullying that would be consistent with those that apply to civil servants. Unfortunately, this offer was refused and so we were left with no option but to seek a judicial review of his decision.”

Penman warned that the affair had “undermined any confidence civil servants had in the Ministerial Code as a mechanism for addressing concerns about bullying or harassment by ministers”.

He added: “Even at this late stage, we hope the Prime Minister recognises how damaging this has been and takes the opportunity to work with the FDA to create an independent, transparent process for dealing with complaints that will enjoy the confidence of both civil servants and ministers.”