An Employment Law Perspective on Elon Musk's Controversial Employee Management Strategy

The law in the UK requires that a resignation must be "clear and unambiguous," so employers must ensure that the employee intends to resign.

Avoiding ambiguity and having employees confirm their intentions in writing in these circumstances is always helpful.

The approach adopted by DOGE, misconceiving a failure to respond to an HR email as a resignation, would create a number of logistical and legal issues.

From a legal perspective, ending the employment relationship in such circumstances would likely amount to a dismissal, not a resignation, which in the UK public sector could potentially give rise to (several million) unfair dismissal claims.

Some notable commentary has suggested that DOGE's actions have been offensive to staff and undermined the trust and confidence federal workers have in the US Government.

In the UK, where an employee feels they have no choice but to resign because of something their employer has done, such as fundamentally breaching the terms and conditions of their employment, especially the implied term of mutual trust and confidence, they may be able to claim for 'unfair constructive dismissal'.  

Employees may make a positive decision to resign in response to the hostile treatment and potentially have claims for unfair constructive dismissal.

Finally, a strategy along the lines of DOGE's new policy could also give rise to discrimination claims.

In the UK, if an employer introduces a provision, criterion or practice (PCP) which applies to all staff equally but, nonetheless, disproportionately adversely affects a particular group of individuals with a protected characteristic under the Equality Act 2010, this will likely amount to indirect discrimination.

Should a group of staff with a particular protected characteristic, for example, part-time working women or those with certain disabilities, be subjected to a detriment as a result of a requirement to respond to the employer's requirements, this would be unlawful. 

Again, such issues can give rise to claims by large numbers of employees acting collectively.

Ultimately, DOGE's policy is fraught with risk, and its controversy is unlikely to dissipate at any time soon.

Should employers wish to ensure the accountability of staff, best practice dictates that this should be done within an appropriate forum, such as in an appraisal or performance management process.